UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


UNIVERSITY  of  CALIFOKNlr 

LOS  Ais'GELES 


THE 

DIPLOMATIC   PROTECTION   OF 

CITIZENS  ABROAD  . 

OR  ^ 

THE  LAW  OF  INTERNATIONAL  CLAIMS 


BY 

EDWIN  M.  BORCHARD,  LL.B.,  Ph.D. 

SOMETIME   EXPERT  ON   INTERNATIONAL  LAW.   NORTH   ATLANTIC  COAST 

FISHERIES  ARBITRATION  AT  THE  HAGUE.  AND  ASSISTANT 

SOLICITOR.  DEPARTMENT  OF  STATE 


THE  BANKS  LAW  PUBLISHING  CO. 
NEW  YORK 

1925 


^7  '1  i   -i    ■' 


COFTBIOBT.    1915,  BT 

THE  BANKS  LAW  PaiJLISHING  COMPANY 


To 

JOHN  BASSETT  MOORE 


^  PREFACE 


J^' 


With  the  drawing  together  of  the  world  by  increased  faeiUties  for 
travel  and  communication,  the  number  of  persons  going  abroad  for 
purposes  of  business  or  of  pleasure  has  steadily  increased.    Coincident- 
ally,  an  increasing  amount  of  capital,  American  as  well  as  European, 
has  been  seeking  investment  in  foreign  countries,  and  the  growth  of 
international  commerce  and  intercourse  has  resulted  in  the  creation 
of  vast  commercial  and  other  interests  abroad.    These  movements  of 
^     men,  money,  and  commodities,  while  of  economic  advantage  to  the 
t"     exploiting  and  to  the  exploited  country  and  establishing  bonds  of 
■^   mutual  dependency  between  them,  also  create  occasional  friction. 

The  individual  abroad  finds  himself  in  legal  relation  to  two  countries, 
the  country  of  which  he  is  a  citizen,  and  the  country  in  which  he 
§1.    resides  or  establishes  his  business.    From  the  point  of  view  of  the  one, 
^    he  is  a  citizen  abroad;  from  the  point  of  view  of  the  other,  he  is  an  alien. 
The  common  consent  of  nations  has  established  a  certain  standard  of 
conduct  by  which  a  state  must  be  guided  in  its  treatment  of  aliens.    In 
^i     the  absence  of  any  central  authority  capable  of  enforcing  this  standard, 
*^     international  law  has  authorized  the  state  of  which  the  individual 
is  a  citizen  to  vindicate  his  rights  by  diplomatic  and  other  methods 
^     sanctioned  by  international  law.    This  right  of  diplomatic  protection 
«      constitutes,  therefore,  a  limitation  upon  the  territorial  jurisdiction  of 
^      the  country  in  which  the  alien  is  settled  or  is  conducting  business. 
o  The  standard  of  treatment  which  an  alien  is  entitled  to  receive 

is  incapable  of  exact  definition.  The  common  practice  of  the  civilized 
nations  and  the  adjudication  of  conflicts  between  nations,  particularly 
by  arbitration,  arising  out  of  alleged  violations  of  the  rights  of  citi- 
zens abroad,  have  nevertheless  developed  certain  fundamental  prin- 
ciples from  which  no  nation  can  depart  without  incurring  international 
responsibility  to  the  national  state  of  the  person  injured.  The  right 
which  every  state  possesses  to  protect  its  citizens  abroad  is  correla- 


VI  PREFACB 

tive  to  its  obligation  to  accord  foreigners  a  measure  of  treatment 
satisfying  the  requirements  of  international  law  and  applicable  treaties, 
and  to  its  responsibility  for  failure  to  accomplish  this  duty.  Practice 
has  demonstrated  that  the  mere  fact  that  aliens  have  been  granted 
the  rights  authorized  by  local  law,  and  equality  of  treatment  with 
natives,  is  not  necessarily  regarded  as  a  final  compliance  with  inter- 
national obligations,  if  the  local  measure  of  justice  and  administra- 
tion in  a  given  case  falls  below  the  requirements  of  the  international 
standard  of  civilized  justice,  although  it  is  always  a  delicate  proceed- 
ing, in  the  absence  of  extraterritoriality,  to  charge  that  a  rule  of 
municipal  law  or  administration  fails  to  meet  the  international  standard. 

Citizens  abroad,  therefore,  have  in  the  vindication  of  their  rights 
an  extraordinary  legal  remedy  not  open  to  natives.  However  just 
it  may  be  to  confine  the  aUen  to  the  rights  granted  by  local  law,  pred- 
icating state  liability  merely  upon  the  state's  failure  to  make  its  grant 
effective,  practice  has  shown  that  nations  of  the  Western  European 
type  are  unwilling  unreservedly  to  concede  the  application  of  this 
principle  to  some  of  the  weaker  countries  of  the  world.  While  tacitly 
undertaking  to  abide  by  the  local  law,  a  rule  supported  by  principle, 
international  practice  has  given  aliens  a  reserved  power,  after  the  vain 
exhaustion  of  local  remedies,  to  call  upon  the  diplomatic  protection 
of  their  own  government,  if  their  rights,  as  measured  not  necessarily 
by  the  local,  but  by  the  international,  standard  have  been  violated. 
The  citizen  abroad  has  no  legal  right  to  require  the  diplomatic  pro- 
tection of  his  national  government.  Resort  to  this  remedy  of  diplo- 
matic protection  is  solely  a  right  of  the  government,  the  justification 
and  expediency  of  its  employment  being  a  matter  for  the  government's 
unrestricted  discretion.  This  protection  is  subject  in  its  grant  to  such 
rules  of  municipal  administrative  law  as  the  state  may  adopt,  and 
in  its  exercise  internationally  to  certain  rules  which  custom  has  recog- 
nized. 

The  study  of  the  right  of  diplomatic  protection,  therefore,  involves 
an  examination  of  three  distinct  legal  relations:  that  existing,  first, 
between  the  state  and  its  citizen  abroad;  secondly,  between  the 
alien  and  the  state  of  residence;  and,  thirdly,  between  the  two  states 
concerned   with  respect  to  their  mutual  rights  and  obligations.     In 


PREFACE  Vll 

Part  I  of  this  work  these  relations  will  be  discussed  somewhat  inde- 
pendently. The  line  of  development  will  involve,  first,  a  study  of  the 
relation  between  the  state  and  its  own  citizen,  particularly  in  respect 
to  the  state's  right  and  obligation  to  protect  him,  and  secondly,  a  study 
of  the  rights  of  the  alien  in  the  country  of  his  residence  under  the  gen- 
eral principles  of  international  law  and  in  municipal  law,  compara- 
tively treated.  If  the  rights  of  an  alien  are  invaded,  he  must,  as  a 
general  rule,  in  first  instance,  resort  to  the  remedies  provided  by  mu- 
nicipal law.  The  attempt  has,  therefore,  been  made  in  the  third 
chapter,  which  deals  with  the  municipal  responsibiUty  of  the  state, 
to  study,  in  the  field  of  municipal  public  law,  comparatively  considered, 
the  incidence  of  liability  between  the  state  and  the  wrongdoing  officer, 
and  the  remedies  afforded  to  the  injured  individual  in  cases  where 
public  responsibiUty  is  alleged.  If  these  municipal  remedies  are  ex- 
hausted in  vain  and  a  denial  of  justice  in  the  international  sense  is 
alleged  by  the  alien's  national  government,  the  international  re- 
sponsibility of  the  state  of  residence  is  invoked.  In  other  words,  the 
deviation  by  a  state  from  the  special  obligations  of  treaties,  or  from 
that  international  standard  of  civiUzed  justice  to  which  the  alien,  by 
universal  recognition,  is  entitled,  gives  rise  to  its  international  re- 
sponsibility toward  the  alien's  national  government.  The  fourth 
and  following  chapters,  on  international  responsibiUty,  lead,  finally, 
to  a  consideration  of  the  relation  between  the  two  states  concerned, 
the  protecting  state  and  the  state  of  residence. 

In  Part  II,  the  nature,  exercise,  and  effect  of  protection  are  discussed, 
and  particularly  the  relation  between  the  public  claim  of  the  state  and 
the  private  claim  of  the  injured  citizen.  Among  other  matters,  the 
following  topics  receive  consideration:  the  theory  of  the  protective 
function  and  its  operation,  the  true  nature  of  an  international  claim 
arising  out  of  an  injury  to  a  citizen,  the  relation  between  the  public 
and  the  private  demand,  in  international  and  in  municipal  law,  the 
discretionary  nature  of  protection,  the  control  of  the  government,  the 
extent  of  protection,  the  means  of  protection,  and  the  collection  and 
distribution  of  indemnities  and  arbitral  awards. 

In  Part  III,  the  person  or  national  interest  receiving  protection 
is  considered.    This  involves  a  study  of  citizenship  in  its  international 


via  PREFACE 

relations  and  of  those  persons,  entities  and  objects  which  are  entitled 
to  national  protection. 

In  Part  IV,  the  facts,  acts  and  considerations  which  operate  as  con- 
ditions, qualifications  and  limitations  upon  the  right  to  diplomatic 
protection  and  the  prosecution  and  recovery  of  international  claims 
are  considered,  including  the  conditions  prescribed  by  the  protecting 
government,  and  the  limitations  arising  out  of  the  act  or  failure  to  act 
of  the  citizen  himself,  out  of  the  subject-matter,  and  out  of  the  neces- 
sity for  taking  account  of  the  primary  interests  of  the  state  and  the 
accepted  rules  of  international  intercourse. 

In  the  present  work,  the  practice  of  the  United  States  through  the  De- 
partment of  State  and  of  other  countries  through  their  Foreign  Offices, 
in  the  exercise  of  the  right  of  diplomatic  protection,  and  the  awards 
of  arbitral  tribunals  passing  upon  international  pecuniary  claims  have 
been  used  as  principal  sources.  The  practice  of  the  United  States 
in  matters  of  diplomatic  protection  may  well  be  regarded  as  a  close 
approach  to  a  just  standard  of  international  practice,  for  the  United 
States  has  been  and  is  both  an  exploiting  and  an  exploited  country. 
The  views  and  the  principles  it  has  declared  in  the  exercise  of  its 
right  to  protect  American  citizens  abroad  have,  as  a  general  rule, 
been  tempered  by  the  knowledge  that  it  must  recognize  as  belonging 
to  aliens  within  this  country  the  same  rights  that  it  seeks  to  establish 
for  its  citizens  abroad,  the  measure  of  its  obligations  being  the  measure 
of  its  rights.  The  effort  has  been  made  to  discount  argumentative 
and  controversial  positions  which  have  occasionally  been  assumed, 
where  a  course  has  been  adopted  without  regard  either  to  the  real 
principles  involved  or  to  the  ultimate  interests  of  the  United  States. 

The  decisions  and  awards  of  arbitral  tribunals  passing  upon  pecun- 
iary claims  instituted  by  aliens,  through  their  national  governments, 
against  the  foreign  governments  in  which  they  may  reside  or  do  busi- 
ness are  a  most  important  guide  in  determining  the  reciprocal  rights 
and  obligations  of  states  in  the  protection  of  individuals.  By  the 
submission  of  a  private  claim  to  arbitration  the  two  countries  in  con- 
troversy provide  a  forum  to  determine  the  extent  of  the  legal  injury 
which  the  state  has  sustained  in  the  person  of  its  citizen,  and  the  legal 
right  to  and  amount  of  reparation  payable  as  indemnity.     The  two 


PREFACE  IX 

states  substitute  for  diplomatic  negotiation  and  resort  to  self-help 
an  independent  tribunal  with  jurisdiction  to  pass  upon  the  justification 
for  extending  protection  and  the  merits  of  the  defense  in  a  given  case. 
Hence  the  great  authority  of  arbitral  decisions  as  a  criterion  for  the 
mutual  rights  and  obligations  of  states  with  respect  to  individuals, 
and  the  reliance  placed  by  Foreign  Ofl&ces  upon  arbitral  awards,  as 
precedents,  in  the  presentation  of  and  defense  against  international 
claims  arising  out  of  alleged  violations  of  the  rights  of  individuals. 

The  practice  and  the  science  of  international  law  owe  to  Professor  John 
Bassett  Moore  an  immeasurable  debt.  Apart  from  his  invaluable  per- 
sonal services  to  various  administrations,  he  has,  by  the  publication 
of  his  monumental  works,  the  Digest  of  International  Law  and  the 
History  and  Digest  of  International  Arbitrations,  furnished  to  the  offi- 
cials of  the  Department  of  State  constant  and  trustworthy  guidance 
in  the  conduct  of  the  country's  foreign  relations.  The  writer's  personal 
indebtedness  to  Professor  Moore  is  but  feebly  expressed  in  owning 
the  gratitude  which  he  feels  for  friendly  counsel  always  generously 
placed  at  his  disposal  and  for  the  stimulus  to  sound  scholarship  which 
Professor  Moore  unconsciously  inspires. 

This  occasion  is  taken  to  express  the  author's  sense  of  obligation 
to  Dr.  George  W.  Scott  for  awakening  in  him  an  interest  m  and  appre- 
ciation of  the  importance  of  the  present  subject,  and  to  Mr.  J.  Reuben 
Clark,  Jr.,  formerly  Solicitor  of  the  Department  of  State,  Mr.  Richard 
W.  Floumoy,  Jr.,  Chief  of  the  Bureau  of  Citizenship,  and  Professor  W. 
F.  Dodd  of  the  University  of  Chicago,  for  their  kindness  in  reading 
various  sections  of  the  manuscript  and  for  their  valuable  suggestions. 

Edwin  M.  Borchard. 
March  1,  1915. 


TABLE  OF  CONTENTS 

PART  I 

RELATION  BETWEEN  STATE  AND  CITIZEN,  STATE  AND  ALIEN,  AND 
BETWEEN  STATE  AND  STATE 

Chapter  I 

INTRODUCTION 

PAQB 

Relation  Between  State  and  Individual — General  Principles 3 

§      1.  State  and  Individual 3 

§      2.  Growth  of  Territoriality  of  Law 3 

Nationality 7 

§      3.  Development  of  Nationality 7 

§      4.  Nature  of  Citizenship 7 

§      5.  Nature  of  the  Bond 9 

§      6.  "Temporary  Allegiance"  of  Aliens 11 

§      7.  Source  of  Rights  of  Individual 11 

§      8.  Nationality   as  Title   to   International   Redress   for   Violation   of 

Rights 15 

§      9.  Position  of  the  Individual  in  International  Law 16 

§    10.  Characteristics  of  Bond  of  Nationality 19 

§    11.  Dual  and  No  Nationality 19 

§    12.  Citizens  in  International  and  in  Constitutional  Law 20 

§    13.  Rights  and  Duties  of  State  and  Citizen  Abroad 21 

Protection  Abroad 25 

§    14.  Diplomatic  Protection  a  Limitation  on  Territorial  Jurisdiction  ....  25 

§    15.  Right  and  Duty  of  Protection 29 

The  Protective  Function 30 

§    16.  PoUtical  Philosophy.    Function  of  the  State 30 

Chapter  II 

THE  ALIEN 

§    17.  Historical  Development  of  Legal  Position  of  Alien 33 

§    18.  Relation  of  Law  of  AUena  to  Different  Branches  of  Law 36 

§    19.  Position  of  Alien  in  Municipal  Law 36 

§    20.  Sources  of  the  Law  of  Aliens 38 

n 


XU  TABLE   OF   CONTENTS 

PAQE 

Minimum  of  Rights  Due  to  Aliens 39 

§    21.  Method  of  Establishing  Minimum 39 

§    22.  Recognition  of  Legal  Personality 40 

§    23.  Status  of  Foreign  Corporations 41 

§    24.  Other  Rights  of  the  Alien 42 

Maximum  Power  of  State  over  Aliens 43 

§    24a.  Matters  of  Public  Law 43 

§    25.  Matters  of  Private  Law 44 

Admission  and  Exclusion 44 

§    26.  State's  Right  of  Exclusion 44 

Expulsion 48 

§    27.  State's  Power  to  Expel 48 

§    28.  Grounds  of  Expulsion 51 

§    29.  Method  of  Exercising  Right  of  Expulsion 54 

§    30.  International  Phases  of  Expulsion 55 

§    31.  Grounds  of  International  Claims 57 

§    32.  In  Time  of  War 61 

§    33.  Extradition 62 

Political  Rights  and  Duties 63 

§    34.  These  not  Usually  Ascribed  to  Aliens 63 

§    35.  Military  Service 64 

Civil  Rights 69 

§    36.  Meaning  of  the  Term 69 

§    37.  Types  of  Legislative  Systems 71 

§    38.  Public  Rights 73 

§    39.  Private  Rights 86 

§    40.  Transient  and  Domiciled  Aliens 91 

§    41.  Subjection  to  Territorial  Law 94 

§    42.  Criminal  Proceedings 96 

§    43.  Limitations  upon  Territorial  Jurisdiction — Extraterritoriality 102 

§    44.  Equality  of  Alien  and  National  not  always  Internationally  Suffi- 
cient    104 

§    45.  Treaty  Rights  of  Aliens  in  the  United  States 107 

Position  in  War 109 

§    46.  Aliens  in  War 109 

Chapter  III 

MUNICIPAL  RESPONSIBILITY   OF  THE   STATE 

§    47.  Outline  of  the  Subject 116 

§    48.  Distinction  between  Governmental  and  Corporate  Functions 117 

§    49.  Judicial  Control  over  Acts  of  Administration 118 

§    50.  When  State  is  Responsible,  and  Incidence  of  Liability 120 

The  State  as  a  Public  Power 125 

5    51.  Acts  of  Legislation — No  Responsibility  the  Rule 126 


TABLE   OF   CONTENTS  xiii 

PAQB 

S    52.  Judicial  Acts 129 

Executive  and  Administrative  Acts 131 

§    53.  Judicial  Control 131 

The  French  System 134 

§    54.  Different  Classes  of  Administrative  Acts.    Recourse  of  Individual 

and  State  Responsibility 134 

§    55.  Respective  Liability  of  State  and  Officer 138 

§    56.  Limitations  on  State  Liability  for  Administrative  Acts 139 

§    57.  Liability  of  Municipalities 140 

§    58.  Resume 142 

The  German  System 142 

§    59.  Judicial  Control  over  Acts  of  Administration 142 

§    60.  Pecuniary  Liability  of  the  State 143 

Systems  of  Other  European  Countries 147 

§    61.  Spain 147 

§    62.  Italy 148 

§    62a.  Austria-Hungary 150 

§    63.  Switzerland 152 

§    64.  Belgium  and  Other  Countries 153 

§    65.  Roumania 154 

§    66.  Comparison  of  Continental  Systems 155 

Anglo-American  System 156 

§    67.  Judicial  Control  over  Acts  of  Administration 156 

§    68.  Suit  for  Pecuniary  Damages — Liability  of  Municipal  Corporations  .  157 

§    69.  Principle  of  State  Immunity  from  Pecuniary  Liability 159 

§    70.  Limited  Right  of  Action  Granted  by  Statute 162 

Liability  of  Officers — Comparative  Law 171 

§    71.  Right  to  Sue  Officer.    The  Method  of  Protecting  Officer 171 

§    72.  Foreign  States  before  Municipal  Courts 175 


Chapter  IV 

INTERNATIONAL  RESPONSIBILITY   OF  THE  STATE 

§    73.  General  Principles 177 

Authorities  of  the  State 180 

§    74.  Different  Classes  of  Authorities 180 

Legislative  Authorities 181 

§    75.  Acts  of  Legislation 181 

Executive  and  Administrative  Authorities 183 

§    76.  Limitatioiid  upon  their  Power.    Contractual  Relations 183 

§    77.  Tortious  Acts 185 

§  '78.  Diplomatic,  Naval  and  Military  Officers 187 

§    79.  Minor  Officials 189 

S   80.  Soldiers 193 


XIV  TABLE    OF   CONTENTS 

PAQB 

Judicial  Acthorities 195 

i    81.  Position  of  Courts  and  Judges 195 

PouTicAL  Subdivisions  of  the  State 199 

§    82.  Responsibility  of  Central  Government  for  its  Constituent  Parts  .  . .  199 

i    83.  Succession  of  States  and  Apportionment  of  Debts 202 

D«  Facto  Governments 205 

§    84.  Different  Kinds.    Transmission  of  Obligations 205 

}   85.  Criteria  of  De  Facto  Government.    Effect  of  Recognition 210 

Chapter  V 

INTERNATIONAL  RESPONSIBILITY   OF  THE  STATE — Continued 

ACTS  OF  INDIVIDUALS 

{    86.  Obligations  of  the  Government 213 

I    87.  Factors  Imposing  Liability  upon  the  Government 217 

§    88.  Brigandage 219 

Mob  Violence 220 

§    89.  Obligations  of  the  Government 220 

§    90.  Special  Protection  Due  in  Certain  Cases 222 

§    91.  Factors  Imposing  Liability  upon  the  Government 223 

§    92.  Statutory  Compensation  by  Municipalities 226 

Civil  War  Injuries 228 

§    93.  General  Principles  and  Theory 228 

{    94.  Limitations  on  General  Rules.     Effect  of  Recognition,  Continued 

Residence,  Participation  and  Amnesty 235 

I    95.  Insurgents  in  Temporary  Control  of  Limited  Areas 239 

{    96.  Successful  Revolution 241 

{    96.  Experience  of  Latin-America 242 

Chapter  VI 

INTERNATIONAL  RESPONSIBILITY   OF  THE  STATE — Continued 
WAR   CLAIMS 

S    98.  Belligerent  and  Private  Rights 246 

5    99.  Theory  of  Compensation  for  War  Losses 247 

§  100.  A  State  of  War 248 

§  101.  Position  of  Aliens  in  Hostile  Territory 250 

§  102.  Enemy  Character 253 

I  103.  War  on  Land 2.55 

§  104.  Appropriation  of  Private  Property 262 

J  105.  Requisit ions  and  Contributions 267 

i  106.  War  at  Sea 270 


TABLE  OF  CONTENTS  XV 

TAOS 

1 107.  Neutral  Obligations 277 

S  108.  State  Indemnity 279 

Chapter  VII 

INTERNATIONAL  RESPONSIBILITY   OF  THE  STATE — Continued 

CONTRACTUAL   CLAIMS 

§  109.  Exceptional  Position  of  Claims  Arising  out  of  Contracts 281 

§  110.  Three  Classes  of  Contractual  Claims.    Distinctions 281 

Contracts  Between  Individuals 283 

§  111.  Absence  of  Governmental  Inteiest 283 

Contracts  between  Citizen  and  Foreign  Government 284 

§  112.  Formal  Interposition  Not  Customary 284 

§  113.  Use  of  Good  Offices  Authorized 288 

§  114.  Qualifications  of  General  Rule  of  Non-Interposition 291 

§  115.  Arbitration 296 

Bonds  of  Pdbmc  Debt .302 

§  116.  Claims  Arising  out  of  Unpaid  Bonds 302 

§  117.  Nature  of  Public  Loan  and  Law  Governing 302 

§  118,  Remedy  in  Municipal  Courts 305 

§  119.  International  Remedies.    The  Drago  Doctrine 308 

§120.  Diplomatic  Interposition  and  Intervention.    Opinions  of  Publicists .  310 

§  121.  Practice  of  Nations 313 

§  122.  The  Porter  Proposition  at  The  Hague 318 

§  123.  Relation  between  Porter  Proposition  and  Drago  Doctrine 321 

§  124.  Public  Bonds  before  Tribunals  of  Arbitration 322 

§  125.  The  United  States  and  Central- American  Loans 325 

§  126.  Conclusion 327 

Chapter  VIII 

INTERNATIONAL   RESPONSIBILITY    OF   THE   STATE Continued 

DENIAL  OF  JUSTICE 

§  127.  Meaning  of  the  Term 330 

i  128.  Conditions  Incident  and  Precedent  to  Diplomatic  Interposition.  . . .  331 

§  129.  "Denial  of  Justice"  in  International  Practice 335 

5  130.  Extent  to  which  Unjust  Judgment  of  Municipal  Court  is  Inter- 
nationally Binding 340 

Chapter  IX 

RELATION   between   STATES 

§  131.  Mutual  Concessions  by  States 344 

§  132.  Diplomatic  Protection  a  Limitation  on  Territorial  Jurisdiction  ....  346 


XVI  TABLE   OF  CONTENTS 

PART  II 

THE  EXERCISE  OF  DIPLOMATIC  PROTECTION 

Chapter  I 

NATURE,    BASIS  AND   THEORY   OF   PROTECTION 

PAGE 

§  133.  Fundamental  Principles 349 

§  134.  Theory  of  the  State's  Protection 351 

§  134a.  Diplomatic  Protection  an  Extraordinary  Legal  Remedy 352 

§  135.  Basis  of  the  Public  Action  of  the  State 353 

§  136.  Protection  in  Operation 354 

Chapter  II 

RELATION   between   THE    PRIVATE   AND    THE   PUBLIC    INJURY 

§  137.  Method  of  Presenting  a  Private  Claim 355 

§  138.  Citizen's  Title  to  Protection  Not  a  Legal  Right;  An  Extraordinary 

Legal  Remedy 356 

§  139.  Merger  of  the  Private  Claim  into  the  National  Claim  of  the  State  .  356 

§  140.  Effect  of  National  Character  of  the  Claim 359 

§  141.  Varying  Effects  of  Merger  of  Different  Classes  of  Claims 360 

§  142.  National  Claims  which  Survive  Private  Settlement 362 

Protection  Discretionaky  with  the  Executive 363 

§  143.  Discretion  Uncontrollable  by  Courts 363 

Chapter  III 

GOVERNMENT  CONTROL  OVER  CLAIMS 

§  144.  Power  to  Settle,  Compromise,  Release  or  Abandon  Claim 366 

§  145.  No  Obligation  to  Consult  Claimant 371 

§  146.  Power  to  Determine  Opportunity  for  Pressing  Claim 372 

§  147.  Government's  Power  to  Renounce  Indemnity 373 

§  148.  Government  not  Liable  for  Mismanagement 376 

§  149.  Circumstances  under  which  Government  is  Liable 378 

Chapter  IV 

DISTRIBUTION   OF   AWARDS    AND    INDEMNITIES 

S  150.  Two  Stages  of  the  Proceedings;  The  International  and  the  Mu- 
nicipal    381 

S  161.  Finality  of  Awards 382 


TABLE   OF   CONTENTS  XVll 

PAQB 

§  152.  Award  or  Indemnity  a  National  Fund,  Free  from  Individual  Lien  .  .  383 

§  153.  Nature  of  Individual  Claimant's  Title  to  Fund 384 

§  154.  Its  Distribution  a  Matter  of  Executive  or  Congressional  Discretion, 

Free  from  Judicial  Control 385 

§  155.  Practice  of  Department  of  State  under  Act  of  February  27,  1896  .  .   388 

§  156.  Who  are  "Claimants"  Entitled  to  Distribution  of  Funds 391 

§  157.  Conflicting  Claims  of  Secondary  Beneficiaries  Usually  Referred  to 

Courts 392 

§  158.  Method  of  Proving  Title  as  Claimant  or  Beneficiary 393 

§  159.  Method  of  Making  Payment 395 

§  160.  Remedies  of  Rival  Claimants  or  Beneficiaries.     Secretary's  Deter- 
mination not  Final 396 

§  161.  Expenses  of  Arbitration  Usually  Charged  to  Claimants 397 

Chapter  V 

EXTENT   OF   PROTECTION 

§  162.  Factors  Determining  Measure  of  Protection 399 

§  163.  Fostering  American  Interests  Abroad 400 

§  164.  Preventive  Measures 401 

§  165.  Request  for  Local  Protection  in  Foreign  Country 402 

§  166.  Consular  Administration  of  Decedents'  Estates 404 

§  167.  Degree  of  Assistance  in  Certain  Cases 405 

§  168.  The  Backward  Countries  of  Near  and  Far  East 406 

§  169.  Miscellaneous  Cases 407 

§  170.  Criminal  Proceedings  Abroad 407 

§  171.  Financial  Relief 409 

Measures  of  Damages 413 

§  172.  Direct  and  Indirect  Damage 413 

§  173.  Circumstances  under  which  Claims  for  Indirect  Damages  Allowed  .   416 

§  174.  Punitive  or  Exemplary  Damages 419 

§  175.  Maritime  Torts 419 

§  176.  Ordinary  Contract  and  Tort  Claims 422 

§  177.  Personal  Injuries 423 

§  178.  Measure  of  Damages  in  Claims  arising  out  of  Chinese  Revolution 

of  1911 .' 426 

Interest 428 

§  179.  Absence  of  any  Settled  Rule  of  Allowance 428 

Extraterritorial  Protection 430 

§  180.  Protection  Amounting  to  Jurisdiction 430 

§  181.  Sources  of  Extraterritorial  Rights 431 

§  182.  Origin  and  Development  of  the  System 432 


XVUl  TABLE   OF   CONTENTS 

Chapter  VI 

MEANS   OF   PROTECTION 

PAGE 

§  183.  Agencies  of  Protection 435 

§  184.  Consular  Service 435 

§  185.  Treaties 438 

§  186.  Methods  of  Redress  of  Injuries 439 

Amicable  Methods 439 

§  187.  Diplomacy 439 

§  188.  Good  Offices 440 

§  189.  Diplomatic  Interposition 441 

§  190.  Mediation 442 

§  191.  Arbitration 442 

NoN- Amicable  Methods 445 

§  192.  Withdrawal  of  Diplomatic  Representative 445 

§  193.  Retorsion 445 

§  194.  Display  of  Force 446 

§  195.  Use  of  Armed  Force 448 

§  196.  Reprisals 453 

§  197.  War 455 

PART  III 

THE  OBJECT  OF  PROTECTION— THE  PERSON  AND  PROPERTY  OF 

CITIZENS 

Chapter  I 

CITIZENSHIP   THE   PRIMARY   TITLE   TO   PROTECTION 

§  198.  American  Citizenship 457 

§  199.  Naturalized  Citizens  Abroad 460 

§  200.  Citizenship  Usually  Essential  to  Protection 462 

§  201.  Occasional  Protection  of  Foreigners 463 

Protection  of  Foreigners  in  "Extraterritorial"  Countries 467 

§  202.  Extraterritorial  Protection  and  Jurisdiction 467 

§  203.  Prot6g6  System 468 

Delegated  Protection 47 1 

§  204.  Accompanying  Conditions 471 

§  205.  Occasions  of  Exercise 472 

Seamen 475 

§  206.  American  Seamen.    Meaning  of  the  Term 475 

Vessels 47S 

§  207.  Evidence  of  Nationality 478 

§  208.  American  Ownership  the  Test  of  Title  to  Protection 480 

§  209.  Proper  Use  of  Flag 483 


TABLE   OF   CONTENTS  XIX 

Chapter  II 

PROOF  AND   EVIDENCE   OF   CITIZENSHIP 

PAGB 

§  210.  By  whom  Determined 486 

Proof  of  Citizenship 488 

§  211.  Methods  of  Proof 488 

§  212.  Rules  of  International  Tribunals  of  Arbitration 490 

Evidence  of  Citizenship 492 

§  213.  Classes  of  Documentary  Evidence 492 

The  Passport 493 

§  214.  Nature  and  Purpose  of  Passport  System 493 

§  215.  Relation  of  Passport  to  Diplomatic  Protection 493 

§  216.  Regulations  Governing  Issuance 496 

§  217.  To  Whom  Issued 500 

§  218.  Requirements  of  Foreign  Governments 504 

§  219.  Latest  Passport  Rules 508 

§  220.  Circular  Instruction  Concerning  New  Passport  Regulations 512 

Other  Forms  of  Evidencing  Citizenship 514 

§  221.  Certificate  of  Naturalization 514 

§  222.  Cei-tificate  of  Registration 515 

Impeachment  of  Citizenship 517 

§  223.  Who  May  Impeach 517 

§  224.  Nature  of   Certificate  of   Naturalization.     Its  Character  as  Res 

Adjudicata 519 

§  225.  Conclusiveness  upon  Municipal  Courts 520 

§  226.  The  Practice  of  International  Tribunals  of  Arbitration 522 

§  227.  Conclusiveness  upon  the  Executive 526 

Chapter  III 

NATURALIZATION    AND    OTHER    TITLES    TO    CITIZENSHIP    OR    PROTECTION 

Fraudulent  Naturalization 528 

§  228.  Municipal  Penalties 528 

§  229.  Presumptions  of  Fraud 529 

§  230.  Criteria  Applied  by  Municipal  and  International  Courts 532 

International  Effects  of  Naturalization 533 

§  231.  Nature  and  Effect  of  NaturaUzation 533 

§  232.  Conditions  of  Recognition 535 

§  233.  Certain  Features  of  American  Naturalization  having  International 

Importance 536 

§  234.  Non-Retroactivity  of  Naturalization 539 

§  235.  Protection  of  Naturalized  Citizen  in  Native  Country 540 

§  236.  Relations  with  Different  Countries 543 

§  237.  (A)  Countries  Which  Deny  the  Right  of  Voluntary  Expatriation. .  .  544 


XX.  TABLE   OF  CONTENTS 

PAQB 

§  238.  (B)  Countries  Which  Recognize  Foreign  Naturalization  upon  Con- 
dition Only 546 

§  239.  (C)  Countries  Which  Have  Concluded  Naturalization  Treaties  with 

the  United  States 548 

§  240.  Germany  and  Austria-Hungary 550 

§  241.  Renunciation  of  Naturalization 552 

§  242.  Act  of  March  2,  1907 654 

DoMiciL  AS  Conferring  National  Character 555 

§  243.  Domicil  and  Nationality 555 

§  244.  Domicil  Neither  Confers  nor  Forfeits  Citizenship 558 

§  245.  Belligerent  Domicil 559 

§  246.  Effect  of  Domicil  before  International  Tribunals 561 

Effect  of  Declaration  of  Intention  to  Become  a  Citizen 565 

§  247.  International  Effects 565 

§  248.  Anomalous  Position  of  Declarant 567 

§  249.  Protection  of  "Declarants" 568 

Domicil  plus  Declaration  of  Intention 570 

§  250.  Koszta's  Case 570 

§  251.  Erroneous  Interpretations   572 

§  252.  Decisions  of  United  States-Mexican  Commission  of  1868 574 

Dual  Nationality 575 

§  253.  Manner  in  Which  it  Arises 575 

§  254.  The  Jus  SoU 577 

§  255.  The  Jus  Sanguinis 578 

§  256.  Methods  of  Avoiding  Conflicts 578 

§  257.  Protection  Abroad  in  Cases  of  Dual  Nationality 580 

§  258.  Foreign-bom  American  Citizens 582 

§  259.  Right  of  Election 584 

§  260.  Decisions  of  International  Tribunals  of  Arbitration 587 

§  261.  Measures  to  be  Adopted  to  Adjust  Conflicts  of  NationaUty 590 

§  262.  Absence  of  Nationality 591 

Chapter  IV 

EFFECT  OF  VARIOUS   LEGAL  RELATIONSHIPS 

Married  Women  and  Widows 593 

§  263.  Effect  of  Marriage  on  Citizenship 593 

§  264.  Foreign-bom  Wife  of  American  Citizen 594 

§  265.  Forcign-bom  Widow  of  American  Citizen 598 

§  266.  American-bom  Wife  of  an  Alien 601 

§  267.  American-bom  Widow  of  an  Alien 604 

§  268.  Decisions  of  International  Tribunals  of  Arbitration 605 

Children 606 

§  269.  Citizenship  at  Birth 606 

§  270.  Foreign-bom  Children  of  American  Citizens 608 


TABLE   OF  CONTENTS  XXI 

PAGE 

§  271.  Election  of  Citizenship  under  §  6  of  Act  of  1907 609 

§  272.  Citizenship  by  NaturaUzation  of  Parent 611 

§  273.  Illegitimate  Children 612 

Partners 613 

§  274.  American  Partners  Associated  with  Aliens 613 

§  275.  Decisions  of  International  Tribunals  of  Arbitration 614 

§  276.  Surviving  Partners 616 

Corporations 617 

§  277.  Citizenship  of  Corporations 617 

§  278.  Anglo-American  Law 619 

§279.  Diplomatic  Protection  of  American  Corporations.    Conditions 620 

§  280.  Foreign  Corporation  Substantially  Owned  by  American  Citizens .  .  .  622 

§  281.  Rule  of  International  Tribunals 623 

§  282.  Effect  of  Citizenship  of  Stockholders  upon  Jurisdiction  of  Inter- 
national Commissions 626 

Chapter  V 

SUCCESSORS    IN   INTEREST   AND    BENEFICIAL    OWNERS 

§  283.  Effect  of  Citizenship  of  Derivative  Claimants 627 

Heirs 627 

§  284.  Citizenship  of  Decedent  and  Heir  Usually  Required 627 

§  285.  Decisions  of  International  Tribunals 628 

§  286.  Law  Governing  Distribution  of  Estate 630 

§  286a.  Survivorship  of  Claims 632 

Executors  and  Administrators 633 

§  287.  Rules  Governing  Right  of  Representation 633 

§  288.  Citizenship  of  Original  Claimant  Governs  Jurisdiction 634 

§  289.  Who  May  Act  as  Legal  Representative 634 

Assignees 636 

§  290.  Assignability  of  Claims 636 

§  291.  Assignor  and  Assignee  Must  have  Same  Citizenship 637 

§  292.  Special  Provisions  of  Federal  Statutes  in  Certain  Cases 638 

§  293.  Assignees  in  Bankruptcy 641 

§  294.  Receivers 642 

Beneficial  or  Equitable  Owners 642 

§  295.  Equitable  American  Interest  Protected 642 

§  296.  Creditors 643 

§  297.  Mortgagees 645 

§  298.  Insurers 646 

§  299.  American  Insurers  of  Foreign  Property 647 

§  300.  Foreign  Insurers  of  American  Property 649 

§  301.  Provisions  of  Federal  Statutes 650 


XXU  TABLE   OF   CONTENTS 

PART  IV 

LIMITATIONS  ON  DIPLOMATIC  PROTECTION 

Chapter  I 

CONDITIONS  PRESCRIBED   BY   THE   CLAIMANT'S   OWN  GOVERNMENT 

PAGE 

§  302.  Obligations  of  the  Person  Claiming  Protection 651 

§  303.  Instructions  for  Claimants  against  Foreign  Governments 653 

§  304.  Interpretation  of  the  Circular  of  1906 656 

§  305.  Practice  of  International  Tribunals 658 

Claim  must  be  National  in  Origin 660 

§  306.  Impossibility  of  Nationalizing  Claim  by  Naturalization  or  Assign- 
ment    660 

§  307.  Decisions  of  International  Tribunals  of  Arbitration 662 

Citizenship  at  Time  of  Presentation 664 

§  308.  Decisions  of  International  Tribunals  of  Arbitration 664 

§  309.  Claim  Must  be  Continuously  National  in  Ownership 666 

§  310.  Theory  of  Indirect  Injury  to  the  State.    Criticism 666 

Consular  Registration  of  Citizens 667 

§  311.  Its  Relation  to  Protection 667 

§  312.  Registration  in  Extraterritorial  Countries 669 

§  313.  Proof  of  Citizenship  Necessary.    Consular  Regulations 669 

Other  Conditions 673 

§  314.  Fulfillment  of  Duties  of  Citizenship 673 

Chapter  II 

FORFEITURE   OF   PROTECTION  BY  ACT  OF  CITIZEN 

EXPATRIATION 

§  315.  Recognition  as  an  Individual  Right.    History  in  United  States.  .  .  .  674 
§  316.  Diplomatic  Relations  with  Countries  not  Recognizing  Expatriation 

as  Individual  Right 677 

§  317.  Inconsistencies  of  Law  and  Practice  with  Principles  of  Act  of  1868.  .  678 

§  318.  Expatriation  of  American  Citizen 679 

§  319.  Methods  of  Expatriation 680 

Expatriation — Comparative  Legislation 683 

§  320.  Types  of  Legislation 683 

§  321.  Modes  of  Expatriation 685 

§  322.  Effect  of  Husband's  and  Father's  Expatriation  upon  Wife  and  Children  687 

§  323.  Repatriation 688 

Implied  Renunciation  of  Citizenship 689 

§  324.  True  Meaning  of  the  Phrase 689 


TABLE  OF  CONTENTS  Xxiii 

PAflE 

S  325.  Acts  from  Which  Renunciation  of  Citizenship  may  be  Implied 089 

(A)  EFFECT  OF  PROLONGED  RESIDENCE  ABROAD 

§  326.  General  Principles 690 

§  327.  The  Case  of  Native  Citizens 692 

§  328.  Practice  under  the  Amended  Rules  of  1907  and  the  Circular  In- 
struction of  July  26,  1910 695 

§  329.  Decisions  of  International  Tribunals  of  Arbitration 698 

§  330.  Case  of  Naturalized  Citizens 701 

(B)  METHODS  OF  OVERCOMING  PRESUMPTION    OP    EXPATRIATION 

§  331.  Interpretation  and  Construction  of  Departmental  Rules 704 

§  332.  Rules  in  the  Case  of  Extraterritorial  Countries 706 

§  333.  Recent   Departmental  Ruling  Concerning  Heritabihty  of  Citizen- 
ship in  Extraterritorial  American  Communities 709 

Banishment 710 

§  334.  Now  Practically  Abandoned 710 

Acts  Which  do  not  Effect  Exp.\triation 711 

§  335.  Foreign  Military  Service 711 

§  336.  Other  Acts 712 

Chapter  III 

FORFEITURE    OF    PROTECTION   BY   ACT   OF   CITIZEN — Continued 

CENSURABLE   CONDUCT   OF   THE    CLAIMANT 

§  337.  General  Principles.    Topical  Division 713 

Inequitable  Conduct  Generally 714 

§  338.  Ex  Dolo  Malo  non  Oritur  Actio 714 

§  339.  Disloyalty  and  Unneutral  Conduct 715 

§  340.  Effect  of  Censurable  Conduct  in  Certain  Cases 716 

§  341.  Censurable  Conduct  Extraneous  to  Injury  or  Claim 718 

Concealment  and  Denial  of  Citizenship 720 

§  342.  Departmental  Rulings 720 

§  343.  Decisions  of  International  Tribunals 721 

Fraudulent  and  Exorbitant  Claims 724 

§  344.  Claims  against  United  States 724 

§  345.  Claims  against  Foreign  Governments 725 

Evasion  of  National  Duties 72S 

§  346.  Desertion 728 

§  347.  Evasion  of  Duties  of  Citizenship  Generally 731 

Breach  op  Local  (Foreign)  Law 733 

§  348.  Limitations  on  Diplomatic  Protection 733 

§  349.  Acquittal  of  Criminal  Charges.    International  Claim  Unusual 736 

Breach  of  Intern.\tional  L.\w 737 

§  350.  Piracy  and  Slave-Trade 737 

§  351.  Violation  of  Rights  of  Belligerents.    Contraband,  Blockade,  etc 739 


XXIV  TABLE   OF  CONTENTS 

PAQB 

Breach  of  National  Law 746 

§  352.  When  Protection  Forfeited 745 

§  353.  Waiver  of  Forfeiture  by  National  Government 746 

Unlawful  Trade 748 

§  354.  Trading  with  the  Enemy 748 

§  355.  Prohibition    upon    Neutral    Vessels.      Decisions    of    International 

Tribunals 752 

§  356.  Licenses 753 

§  357.  Special  Cases  of  Intercourse  with  Enemies 754 

Unneutral  Conduct  and  Unfriendly  Act 755 

§  358.  Breach  of  Neutrality 755 

(a)  Privateering 756 

§  359.  Decisions  of  International  Tribunals 757 

(6)   Unlawful  Expeditions 758 

§  360.  NeutraUty  Acts  of  the  United  States 758 

§  361.  Effect  of  Participation  in  Unlawful  Expeditions  upon  Protection.  . .  760 

§  362.  Cases  before  International  Tribunals 762 

§  363.  Executive  and  Judicial  Rulings 765 

(c)  Unneutral  Military  Service  and  Other  Acts 766 

§  364.  Quahfied  Loss  of  Protection 766 

§  365.  Claims  for  Military  and  Other  Service 776 

§  366.  Participation  in  PoUtics 778 

§  367.  Unfriendly  Acts 780 

§  368.  Unneutral  Supplies  and  Other  Aid 783 

(d)  Aid  and  Comfort 786 

§  369.  Definition  of  "Aid  and  Comfort" 786 

§  370.  Acts  which  do  not  Constitute  "Aid  and  Comfort" 790 

Chapter  IV 

FORFEITURE   OF   PROTECTION   BY   ACT   OF   CITIZEN — Continued 
RENUNCIATION    OF   PROTECTION 

Express  Renunciation  by  Contract 792 

§  371.  The  So-called  Calvo  Clause 792 

§  372.  Its  Incorporation  in  Concession-Contracts  in  Latin-America 794 

§  373.  Its  Ineffectiveness  in  Preventing  Interposition.     Practice  of  the 

United  States 797 

§  374.  Executive  Views  as  to  the  Renunciation  of  Protection  or  Indemnity . .  798 
§  375.  Decisions  of  International  Tribunals  on  Effect  of  Contractual  Re- 
nunciation    800 

§  376.  The  Validity  of  Calvo  Clause  Upheld 801 

§  377.  The  Validity  of  Calvo  Clause  Denied 805 

§  378.  Conclusions 808 

Implied  Renunciation  of  Protection 810 


TABLE   OF   CONTENTS  XXV 

PAGE 

§  379.  Various  Acts  from  which  Renunciation  is  Implied 810 

§  380.  Effect  of  Accepting  Pubhc  Office  or  Employment  Abroad 813 

Chapter  V 

FORFEITURE    OF   PROTECTION   BY   ACT   OF   CITIZEN — Continued 

FAILURE    OF   PROPER   RECOURSE   TO   JUDICIAL   REMEDIES 

Failure  to  Exhaust  Local  Remedies 817 

§  381.  Application  of  General  Rule 817 

§  382.  Position  of  Latin- America 820 

§  383.  Qualifications  of  the  Rule.     When  Unnecessary  to  Exhaust  Local 

Remedies 821 

Laches,  Limitation  and  Prescription 825 

§  384.  Effect  of  Delay  in  Presenting  Claim 825 

§  385.  Laches 827 

§  386.  Limitations 828 

§  387.  Decisions  of  International  Tribunals 829 

Chapter  VI 

LIMITATIONS    ARISING    OUT    OF    SUBJECT-MATTER    AND    POLITICAL    CON- 
SIDERATIONS 

§  388.  Subject-Matter 833 

§  389.  PoUtical  Considerations 834 

Chapter  VII 

LIMITATIONS  ARISING  OUT  OF  MUNICIPAL  LEGISLATION  OF  THE 
DEFENDANT   STATE 

§  390.  Originating  Conditions 836 

§  391.  Legislative  Limitations  upon   Diplomatic   Protection — Civil  War 

Injuries 838 

§  392.  Legislative  Limitations   to   Avoid   Claims   Based   Upon   Tortious 

Injuries 842 

§  393.  Subtle  Legislative  Measures  to  Avoid  Interposition 844 

§  394.  Matriculation  as  Foreigner 854 

§  395.  Legislative  Limitations  in  Matters  of  Contractual  Claims 856 

§  396.  Conclusions 856 

General  Conclusions 861 

Appendix.    General  and  National  Bibliographies  on  the  Law  of  Aliens  .  .  865 
Index 929 


BIBLIOGRAPHY  OF  GENERAL  WORKS 


STATE  PAPERS  AND  TREATIES 

U.  S.  Dept.  of  State,  The  diplomatic  correspondence  of  the  United  States  .  .  • 
from  .  .  .  1783  to  .  .  .  1789,  Washington,  1833-34.    7  v.  and  1837  ed.  in  3  v. 

U.  S.  Congress,  American  state  papers  .  .  .  Class  I.  Foreign  Relations,  1789-1828, 
Wash.,  1832-1859.    6  v. 

U.  S.  Dept.  of  State,  Papers  relating  to  the  foreign  relations  of  the  United  States, 
Wash.,  1862-1914.  75  v.  (from  1861  to  1869,  entitled  Diplomatic  Correspond- 
ence of  the  United  States;  1870,  omitted;  1871-1910,  entitled  Foreign  Relations, 
cited  For.  Rel.). 

Treaties,  conventions,  international  acts,  protocols  and  agreements  between  the 
United  States  of  America  and  other  powers,  1776-1909.  Compiled  by  William 
M.  Mallo}',  Wash.,  1910.  2  v.  with  supplement,  1913  (cited  Malloy,  Treaties). 
Also  numbered  Treaty  Series,  cited  by  number. 

Compilation  of  reports  of  Committee  on  Foreign  Relations.  U.  S.  Senate,  1789-1901. 
Sen.  Doc.  231,  56t.h  Cong.,  2nd  sess.,  Wash.,  1901.    8  v. 

Great  Britain,  Foreign  Office,  British  and  foreign  state  papers,  London,  1841  et  seq. 
102  V.  to  1913.    (Cited  State  Papers  or  St.  Pap.) 

Hertslet's  commercial  treaties,  London,  1827  et  seq.    26  v.  to  1913. 

Great  Britain,  Treaty  series.    Annual  volume  since  1892. 

National  collections  of  treaties  under  each  country. 

Latin-American  countries.  Reports  of  Minister  of  Foreign  Affairs  to  President  or 
Congress,  in  Boletin,  Memoria  or  Relatorio  de  Relacioncs  Exteriores. 

Martens,  Georg  F.  de,  Recueil  des  principaux  traites  d'alliance  ...  2  6d.,  Got- 
tingen,  1817  et  seq.  93  v.  to  1913.  (This  series,  with  changing  titles  and  editors, 
is  the  principal  repository  of  international  treaties  and  other  international  acts 
from  1761  to  date.) 

GENERAL   SOURCE   BOOKS   OF  AWARDS   OF   INTERNATIONAL   TRI- 
BUNALS OF  ARBITRATION 

Descamps,  E.,  and  Renault,  L.,  Recueil  international  des  traites  du  xx'  si^cle,  Paris, 

1902-1904  and  cont.    3  v.  and  cont. 
de  Lapradelle,  Albert,  and  PoUtis,  Nicolas,  Recueil  des  arbitrages  internationaux. 

t.  1,  1798-1855,  Paris,  1905. 
La  Fontaine,  Henri,  Pasicrisie  Internationale.    Histoire  documentaire  dea  arbitrages 

internationaux,  Berne,  1902. 
Martens,  G.  F.  de,  Recueil  des  principaux  traites  d'aUiance,  depaix,  etc.,  .  .  .  concliu 

par  les  puissances  de  I'Europe  .  .  .  depuis  1761.    2nd  ed.,  Gottingen,  1817  e<  se<?. 

xxvii 


XXvill  BIBLIOGRAPHY   OF   GENERAL   WORKS 

Editors  vary.  93  v.  to  1913.  (Contains  treaties  and  protocols  of  arbitration 
and  awards.) 

Moore,  John  Bassett,  History  and  digest  of  the  international  arbitrations  to  which 
the  United  States  has  been  a  party,  Washington,  1898.  6  v.  (Cited  Moore's 
Arb.) 

Ralstcin,  J.  H.,  International  arbitral  law  and  procedure,  Boston,  1910.  (A  useful 
digest  of  the  awards  of  arbitral  tribunals.) 

Report  of  French- Venezuelan  Mixed  Claims  Commission  of  1902,  prepared  by  Jack- 
son H.  Ralston,  assisted  by  W.  T.  Sherman  Doyle.  Sen.  Doc.  533,  59th  Cong., 
1st  sess.,  Washington,  1906. 

Venezuelan  arbitrations  of  1903,  Sen.  Doc.  316,  58th  Cong.,  2nd  sess.,  prepared  by 
Jackson  H.  Ralston  and  W.  T,  Sherman  Doyle,  Washington,  1904  (cited  Ral- 
ston). 

Das  Werk  vom  Haag,  ed.  by  Walther  Schiicking,  Munchen,  1912  el  seq.  (Prints 
decisions  and  commentary  upon  awards  of  Permanent  Court  of  Arbitration 
at  The  Hague.) 

Awards  are  also  to  be  found  in  Foreign  Relations;  British  and  Foreign  State  Papers; 
in  the  reports  of  the  Ministers  of  Foreign  Affairs  of  various  Latin-American 
countries;  and  in  the  special  reports  of  each  arbitration,  prepared  usually  by  the 
agent  of  one  of  the  governments  concerned. 

PRINCIPAL   PERIODICALS  OF   INTERNATIONAL   LAW,   PUBLIC   AND 
PRIVATE,  AND  COMPARATIVE  LAW 

American  political  science  rev.  (ed.  by  W.  W.  W^illoughby),  Baltimore,  1906  et  seq. 

8  V.  to  1914. 
American  Political  Science  Association,  Annual  Proceedings,  1904-1913.     10  v.  to 

1913.    (Proceedings  will  no  longer  be  issued.) 
Annals  of  the  American  Academy  of  Political  and  Social  Science,  Philadelphia,  1890 

et  seq.    57  v.  to  1915  (cited  Annals). 
Archiv  des  offentlichen  Rechts  (ed.  by  Laband,  Stocrk,  Mayer,  Jellinek  and  Piloty), 

1886  el  seq.    28  v.  to  1914.    Index,  v.  1-25. 
Archives  diplomatiques;  recueil  mensuel  international  de  diplomatic  et  d'histoire, 

ed.  by  Louis  Renault,  G.  Fardis,  etc.,  Paris,  1801  ct  seq.    190  v.  to  1913  (cited 

Arch.  dip.). 
American  joiu-nal  of  international  law,  and  Supplement  (ed.  by  J.  B.  Scott,  ed. 

in  chief).  New  York,  1907  el  seq.    8  v.  to  1914  (cited  A.  J.  I.  L.). 
American  Society  of  International  Law,  Proceedings  .  .  .  New  York,  1908  el  seq. 

8  v.  to  1914. 
Blatter  fiir  vergleichende  Rechtswissenschaft  und   Volkswirtschaftslelire   (ed.   by 

Felix  Meyer),  Berlin,  1906  el  seq.    9  v.  to  1914. 
Bulletin  argentin  de  droit  international  prive,  Buenos  Aires,  1903-1910.    2  v. 
Institut  de  droit  international,  Annuaire  .  .  .  Bruxelles,  1877  et  seq.    26  v.  to  1913 

(cited  Annuaire). 
International  law  association,  Report,  London,  1873  et  seq.    28  v.  to  1914. 
Jahrbufh  der  internationalen  Vercinigung  fiir  vergleichende  Rechtswissenschaft,  etc. 

(ed.  by  F.  Meyer),  Berlin,  1895  et  seq.    9  v.  to  1914. 


BIBLIOGRAPHY   OF   GENERAL   WORKS  XXIX 

Jahrbuch  des  Verwaltungsrechts  (ed.  by  Fritz  Stier-Somlo),  Berlin,  1905  el  seq.    8  v. 

to  1913. 
Jahrbuch  fiir  den  internationalen  Rechtsverkehr  (ed.  by  L.  Wertheimer),  Miinchen, 

1912  (1  V.  1912/1913  pub.). 
Jahrbuch  des  Volkerrechts  (ed.  by  Th.  Niemeyer  and  K.  Strupp),  Miinchen,  1913 

et  seq.    2  v.  to  1914. 
Journal  du  droit  administratif  (ed.  by  Adolphe,  Poignant  and  others),  Paris,  1853 

el  seq.    61  v.  to  1913. 
Journal  du  droit  international  priv6  (ed.  by  Clunet),  Paris,  1874  et  seq.     41  v.  to  1914 

(cited  Clunet). 

Tables  generates,  1905-06.    4  v. 

Journal  of  the  Society  of  Comparative  Legislation  (ed.  by  Sir  John  Macdonell  and 

Edward  Manson),  London,  1896  el  seq.    31  numbers  to  July,  1914. 
Lake  Mohonk    Conference  on    International   Arbitration,  Annual   Reports   since 

1895. 
Nouvelle  revue  pratique  de  droit  international  prive,  (ed.  by  G.  Horn),  Paris,  1905 

et  seq.    9  v.  to  1913. 
Political  science  quarterly,  New  York,  1886  et  seq.     28  v.  to  1913  (cited  Pol.  Sc. 

Quar.). 
Questions  diplomatiques  et  coloniales;  revue  de  politique  exterieure  (ed.  by  H. 

Pensa,  de  Thomasson,  etc.  .  .  .),  Paris,  1897  el  seq.    35  v.  to  1914. 
Revue  de  droit  international  et  de  legislation  comparee  (ed.  by  T.  M.  C.  Asser, 

John  Westlake,  G.  Roliu-Jacquemyns,  A.  Rivier,  Ed.  Rolin  and  others),  Brux- 

elles,  1869  el  seq.    46  v.  to  1914  (cited  R.  D.  I.). 
Revue  de  droit  international  priv6  et  de  droit  penal  international  (ed.  by  A.  Darras 

and  G.  de  Lapradelle),  Paris,  1905  et  seq.    9  v.  to  1913  (cited  R.  D.  L  prive). 
Revue  d'histoire  diplomatique  .  .  .  (ed.  by  Rene  de  Maulde  La  Claviere  and  G. 

Baguenault  de  Puchesse),  Paris,  1887  el  seq.    27  v.  to  1913  (cited  Rev.  hist.  dip.). 
Revue  de  I'lnstitut  de  Droit  Compare,  (ed.  by  E.  Stocquart,  A,  de  Busschere  and 

others),  1908  et  seq.    6  v.  to  1913. 
Revue  diplomatique;  politique,  Utt^rature,  finances,  commerce  international,  Paris, 

1904  et  seq.    10  v.  to  1913  (cited  Rev.  dip.). 
Revue  du  droit  public  et  de  la  science  politique,  (ed.  by  Larnaude;  now  by  G.  Jdze), 

Paris,  1894  el  seq.    30  v.  to  1913  (cited  Rev.  dr.  pub.). 
Revue  generale  d'administration  (ed.  by  M.  Block),  Paris,  1878  et  seq.    98  v.  to  1910. 
Revue  generale  de  droit  international  pubhc  (ed.  by  A.  Pillet  (to  1903);  Paul  Fau- 

chille),  Paris,  1894  et  seq.    21  v.  to  1914  (cited  R.  G.  D.  L  P.). 
Revue  Internationale  du  droit  maritime  (ed.  by  F.  C.  Autran),  Paris,  1885  et  seq. 

29  V.  to  1914. 
Revue  politique  et  parlementaire  (first  ed.  by  Marcel  Fournier),  Paris,  1894  et  seq. 

78  V.  to  1913. 
Rivista  di  diritto  internazionale  e  di  legislazione  comparata  .  .  .  Napoli,  1898-1902. 

5  V.    [No  more  published.] 
Rivista  di  diritto  internazionale  (ed.  by  Anzilotti,  Ricci-Bussati,  etc.),  Roma,  1906 

et  seq.    7  v.  to  1913  (cited  Riv.  dir.  int.). 
Rivista  di  diritto  pubblico,  etc.  (ed.  by  L.  Luzzati,  A.  Salandra,  C.  Caliase  and 

others),  Milano,  1909  et  seq.    6  v.  to  1914. 


XXX  BIBLIOGRAPHY    OF    GENERAL    WORKS 

Society  de  Legislation  Compar6e,  Annuaire  de  legislation  dtrangSre,  Paris,  1872  et  seq. 

41  V.  to  1911. 
Zeitschrift  fiir  das  privat-  und  offentliche  Recht  der  Gegenwart  (ed.  by  Griinhut), 

Vienna,  1874  et  seq.    39  v.  to  1913. 
Zeitschrift  fiir  die  gesamte  Staatswissenschaft  (ed.  by  Mohl,  Knaus  and  others;  now 

ed.  by  K.  Bucher),  Tubingen,  1844  et  seq.    69  v.  to  1913. 
Zeitschrift  fiir  internationales  Recht  (ed.  by  Bohrn  and  Niemeyer),  Erlangen,  1890 

et  seq.    24  v.  to  1913. 
Zeitschi-ift  fiir  Pohtik  (ed.  by  R.  Schmidt  and  A.  Grabowsky),  Berhn,  1908  et  seq. 

6  V.  to  1913. 
Zeitschrift  fiir  vergleichende  Rechtswissenschaft  (ed.  by  Bernhoft,  Cohn  and  Kohler), 

Stuttgart,  1878  et  seq.    32  v.  to  1914. 
Zeitschrift  fiir  Volkerrecht  (ed.  bj'  Kohler  and  Oppenheim),  Breslau,  1907  et  seq. 

8  V,  to  1914  (cited  Ztschr.  f.  Volkerr.). 


PUBLIC  INTERNATIONAL  LAW » 

Alcorta,  Amancio,  Cours  de  droit  international  public,  Paris,  1887. 

Alvarez,  A.,  Le  droit  international  americain,  Paris,  1910. 

Amos,  Sheldon,  Lectures  on  international  law,  London,  1874. 

Anzilotti,  Dionisio,  Teoria  generale  della  responsabilita  dello  stato  nel  diritto  inter- 

nazionale,  Firenze,  1902. 
Arenal  de  Garcia,  Concepci6n,  Ensayo  sobre  el  derecho  de  gentes,  Madrid,  1879. 
Baker,  Sherston,  First  steps  in  international  law,  London,  1899. 
Baty,  Thomas,  International  law,  London,  1909. 

Bello,  Andres,  Principios  de  derecho  internacional,  Madrid,  1883.    2  v. 
Bentham,  J.,  Principles  of  international  law  (in  his  Works,  VIII,  1838). 
Bevilaqua,  Clovis,  Direito  publico  internacional,  Rio  de  Janeiro,  1911.    2  v. 
Bluntschli,  Johann  Kaspar,  Le  droit  international  codifie.    5.  ed.  rev.,  Paris,  1895. 
Bonfils,  Henri,  Manuel  de  droit  international.     7th  ed.  rev.  (by  Fauchille),  Paris, 

1914. 
Bry,  Georges,  Precis  clcmentaire  de  droit  international  public.    6th  ed.  rev.,  Paris, 

1910. 
Bulmerincq,  A.,  Praxis,  Theorie  und  Codification  des  ^'olkerrechts,  Leipzig,  1874. 
Bulmerincq,  A.,  Das  Volkerrecht,  oder  das  internationale  Recht,  systematisch  dar- 

gestellt,  Freiburg,  i.  B.,  1889. 
Burlamaqui,  J.  J.,  Principes  du  droit  de  la  nature  et  des  gens  .  .  .  Nouv.  ed.  Paris, 

1821.    2  v.    English  trans,  by  Nugent,  7th  ed.,  Boston,  1830. 
Bynkershoek,  C.  von,  Quaestionuni  juris  publici,  hbri  II,  Lugduni,  1737. 
Bynkershoek,  C.  von,  Opera  omnia,  Lugduni,  1710-1752.    7  v. 
Calvo,  Carlos,  Le  droit  international  theorique  et  pratique.    5.  ed.,  Paris,  1896.    6  v. 
Carnazza-Amari,  G.,  Trattato  sul  diritto  internazionale  pubblico  di  pace,  Milano, 

1875.    French  translation  by  Montanari-Revest,  Paris,  1880-1882.    2  v. 
Carnazza-Amari,    G.,    Elementi    di    diritto    internazionale,    Catania,    1866-1874, 

2v. 

'  These  works  are  cited  by  the  names  of  their  authors  or  by  short  title. 


BIBLIOGRAPHY    OF   GENERAL   WORKS  XXXI 

Casalis,  Bern.,  Principi  fondamentali  di  un  codice  intemazionale  del  diritto  delle 

genti,  Brescia,  1873. 
Casanova,  Ludovico,  Del  diritto  intemazionale,  lezioni.    3.  ed.,  Firenze,  1876.    2  v. 
Cavaglieri,  Arrigo,  I  diritti  fondamentali  degli  stati  nella  society  intemazionale, 

Padova,  1906. 
Chretien,  Alfred,  Principes  de  droit  international  public,  Paris,  1893. 
Contuzzi,  Francesco  P.,  Diritto  intemazionale  pubblico.    2.  ed.,  Milano,  1905. 
Creasy,  Edward  S.,  First  platform  of  international  law,  London,  1876. 
Cruchaga  Tocornal,  Miguel,  Nociones  de  derecho  internacional.    2.  ed.,  Santiago  de 

Chile,  1902. 
Cybichowski,  S.,  Studien  zum  internationalen  Recht,  Berlin,  1912. 
Davis,  Cushman  K.,  A  treatise  on  international  law  including  diplomacy  ...  in- 
troduction by  Henry  Cabot  Lodge  .  .  .  annotated  and  revised  by  Peter  J. 

Healy  .  .  .  St.  Paul,  Minn.,  1901. 
Davis,  George  B.,  The  elements  of  international  law.     3d  ed.  rev.  to  date  .  .  ., 

New  York,  1908. 
Del  Bon,  Antonio,  Instituzioni  del  diritto  pubblico  intemazionale,  Padova,  1868. 
Despagnet,  Frantz,  Cours  de  droit  international  public.    4.  ed.,  Paris,  1910. 
Diena,  Giulio,  Principi  di  diritto  intemazionale,  Napoli,  1908-10.    2  v. 
Dfez  de  Medina,  F.,  Nociones  de  derecho  internacional  moderno.    4.  ed.  aum.  u.  .  .  . 

modificada  .  .  .,  Paris,  1899. 
Duplessix,  E.,  La  loi  des  nations.    Projet  de  code  de  droit  international  public,  Paris, 

1906. 
Elliot,  Jonathan,  The  American  diplomatic  code,  Washington,  1834.    2  v. 
Fabius,  D.  P.  D.,  Volkenrecht,  Amsterdam,  1907. 

Felice,  Fortune  B.  de.  Lemons  de  droit  de  la  nature  et  des  gens,  Paris,  1830.    2  v. 
Feltner,  H.,  Manual  de  derecho  internacional,  Madrid,  1894.    2  v. 
Ferguson,  J.  H.,  Manual  of  international  law.  The  Hague,  1884.    2  v. 
Fernandez  Prida,  J.,  Estudios  de  derecho  internacional  publico  y  privado,  Madrid, 

1901. 
Forrater,  E.  de,  Codigo  de  derecho  internacional,  Barcelona,  1846.    2  v. 
Field,    David   Dudley,   OutUnes  of  an  international  code.     2nd  ed.,  New  York, 

1876. 
Fiore,  Pasqualc,  II  diritto  intemazionale  codificato  e  la  sua  sanzione  giuridica.  4.  ed., 

Torino,  1909.     (5th  ed.,  1915.    English  translation  from  5th  ed.  now  in  prep- 
aration.) 
Fiore,  Pasquale,  Le  droit  international  codifie  et  sa  sanction  juridique  .  .  .  tr.  par 

Ch.  Antoine,  Paris,  1911. 
Fiore,  Pasquale,  Nouveau  droit  international  public.    2.  ed.,  Paris,  1885-1886.    3  v. 
Fiore,  Pasquale,  Trattato  di  diritto  intemazionale  pubblico.    3.  ed.,  Torino,  1887- 

1891.    3v. 
Funck-Brentano,  Theophile,  and  Sorel,  A.,  Precis  du  droit  des  gens.    3.  ed.,  Paris, 

1900.  •* 

Garcia  Alvarez,  Manuel  y  A.  Garcia  Perez,  Derecho  internacional  publico,  Toledo, 

1909. 
Gardner,  Daniel,  Institutes  of  intemational  law,  public  and  private.  New  York, 

1860. 


XXXll  BIBLIOGRAPHY   OF   GENERAL   WORKS 

Gareis,  Karl,  Institutionen  des  Volkerrechts  ...  2.  aufl.  neu  durchgearbeitet,  Gies- 

sen,  1901. 
Gestoso  y  Acosta,  Luis,  Curso  elemental  de  derecho  internacional  publico  6  historia  de 

los  tratados.    2.  ed.,  Valencia,  1907.    2  v. 
Grotius,  Hugo,  Hugonis  Grotii.  De  jure  belli  acpacislibri  tres  .  .  .  Editionova  .  .  . 

V.  1.,  Wash.,  D.  C,  1913. 
Grotius,  Hugo,  Of  the  rights  of  war  and  peace  ...  in  3  books.    Notes  by  Barbeyrac, 

London,  1738. 
Grotius,  Hugo,  De  jure  belli  ac  pacis,  accompanied  by  an  abridged  translation  by 

W.  Whewell,  Cambridge,  1853.    3  v. 
Grotius,  Hugo,  Le  droit  de  la  guerre  et  de  paix  .  .  .  Nouv.  tr.  .  .  .  par  P.  Pradier- 

Foder6,  Paris,  1867.    3  v. 
Gunther,  Karl  G.,  Europaisches  Volkerrecht  in  Friedenszeiten  nach  Vernunft,  Ver- 

tragen  und  Herkommen,  mit  Anwendung  auf  die  teutschen  Reichsstande,  Alten- 

burg,  1787.    2  v. 
Hall,  William  E.,  A  treatise  on  international  law.    6th  ed.,  by  Atlay,  Oxford,  1909. 
Halleck,  H.  W.,  International  law.    4th  ed.,  by  Baker,  London,  1908.    2  v. 
Handbuch  des  Volkerrechts.    Edited  by  F.  Stier-Somlo,  Berlin,  1912-1914.    4  v. 
Hartmann,  Adolph,  Institutionen  des  praktischen  Volkerrechts  in  Friedenszeiten  .  .  . 

Hannover,  1874. 
Heffter,  A.  G.,  Le  droit  international  public  de  I'Europe.    4th  ed.,  Berlin,  Paris,  1883. 

Ed.  by  Geffcken,  Berlin,  1888. 
Heilborn,  Paul,  Das  System  des  Volkerreches  entwickelt  aus  den  volkerrechtlichen 

Begriffen,  Berlin,  1896. 
Heineccius,  Johann  G.,  Elementa  juris  naturae  et  gentium,  Halae,  1738. 
Heineccius,  Johann  G.,  A  methodical  system  of  universal  law;  or,  The  laws  of  nature 

and  nations,  London,  1741-1763.    2  v. 
Hershey,  Amos  S.,  The  essentials  of  international  public  law.  New  York,  1912. 
Holland,  Thomas  E.,  Studies  in  international  law,  Oxford,  1898. 
Holtzendorff,  Franz  von,  Handbuch  des  Volkerrechts,  BerUn,  1885-89.     4  v.  and 

Registerbandchen,  Hamburg,  1889. 
Internoscia,  J.,  Nouveau  code  de  droit  international,  Paris,  1911  (3  languages,  Eng- 
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Kent,  James,  Kent's  commentary  on  international  law.    2nd  cd.,  by  Abdy,  London, 

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Labra  y  Cadrana,  Rafael  M.  de,  Estudios  de  derecho  publico,  Madrid,  1907. 
Lawrence,  Thomas  J.,  The  principles  of  international  law.    4th  ed.  rev.,  London,  1910. 
Leseur,  Paul,  Introduction  d.  un  cours  de  droit  international  public,  Paris,  1893. 
Levi,  L.,  International  law,  with  materials  for  a  code,  London,  1887. 
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Lomonaco,  G.,  "JVattato  di  diritto  internazionale,  Nai)oli,  1905. 
Lorimer,  James,  The  institutes  of  the  law  of  nations,  Edinburgh  and  London,  1883- 

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Louter,  J.  de,  Het  stellig  volkenrecht.  's-Gravenhage,  1910.    2  v. 
Macri,  G.,  Teorica  del  diritto  internazionale,  Messina,  1883-1884.    2  v. 
Madiedo,  M.  M.,  Tratado  de  derecho  de  gentes,  intemacional,  diplomatico  y  con- 
sular, Bogota,  1874. 
Maine,  Henry  S.,  International  law.    2nd  ed.,  London,  1894. 
Mancini,  P.  S.,  Diritto  internazionale,  Napoli,  1873. 
Manning,  William  O.,  Commentaries  on  the  law  of  nations.    New  ed.,  by  Sheldon 

Amos,  London,  1875. 
Martens,  Fedor  F.,  Volkerrecht.    Das  internationale  Recht  der  civilisirten  Nationen, 

Berlin,  1883-86.    2  v.    (German  ed.)    French  ed.  by  Leo,  Traits  de  droit  inter- 
national, Paris,  1883-1887.    3  v. 
Martens,  Georg  F.,  Precis  du  droit  des  gens  moderne  de  I'Europe.    Notes  by  Pinheiro- 

Ferreira,  and  introduction  by  Ch.  Verge,  Paris,  1864. 
Martens,  Georg  F.,  A  compendium  of  the  law  of  nations  .  .  .  tr.   by   William 

Cobbett,  London,  1802.    [English  translation  of  Martens'  Precis,  from  the  first 

(French)  edition  of  1789].    4th  ed.,  London,  1829. 
Martitz,  F.  von,  Volkerrecht,   Leipzig,   1906.     (In  "Die  Kultur  der  Gegenwart, 

Systematische  Rechtwissenschaft,"  Teil  II,  Abt.  8.) 
Matzen,  Henning,  Forelaesninger  over  den  positive  folkeret,  Kjobenhavn,  1900. 
Merignhac,  A.,  Traite  de  droit  public  international,  Paris,  1905-1907.    3  v. 
Moore,  John  B.,  A  digest  of  international  law.  .  .  .    Washington,  D.  C.,  1906.    8  v. 
Moreira  de  Almeida,  Jose  Augusto,  Elementos  de  direito  intemacional  publico,  Lis- 

boa,  1892. 
Mozo,  Manuel  J.,  Tratado  elemental  de  derecho  de  gentes  y  maritimo  intemacional,. 

Madrid,  1898. 
Neumann,  Leopold,  Elements  du  droit  des  gens  moderne  europeen.    Tr.  de  I'allemand 

(3.  ed.  rev.),  Paris,  1886  (original  German  ed.,  1856). 
Neyron,  Pierre  J.,  Principes  du  droit  des  gens  europeen,  conventionnel  et  coutumier, 

Bronswic,  1783. 
Nys,  Ernest,  Le  droit  international;  les  principes,  les  theories,  les  faita.    Nouv.  6d., 

Bruxelles,  1912.    3  v. 
Nj's,  Ernest,  Les  origines  du  droit  international,  Bruxelles  and  Paris,  1894. 
Olivart,  Ramon  de  Dalmau  y  de,  Tratado  de  derecho  intemacional  publico.    4th  ed., 

Madrid,    1903-1904.     4  v.     Same,  Derecho  intemacional  publico.     5th  ed., 

compendiada,  Madrid,  1906. 
Olivi,  Luigi,  Manuale  di  diritto  internazionale  pubbUco  e  privato.    2nd  ed.,  Milano, 

1911. 
Oppenheim,  Heinrich  B.,  System  des  Volkerrechts.    2nd  ed.,  Stuttgart  and  Leipzig, 

1866. 
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2  V.      ■ 
Pando,  Jose  M.,  Elementos  del  derecho  intemacional.    2nd  ed.,  Madrid,  1852. 
Perels,  F.,  Das  internationale  offentliche  Seerecht  der  Gegenwart.    2nd  ed.,  Berlin, 

1903. 
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1889.    4  V.  (4th  V.  on  private  international  law). 


XXXI V  BIBLIOGRAPHY   OF   GENERAL   WORKS 

Phillipson,  Coleman,  The  international  law  and  custom  of  ancient  Greece  and  Rome, 

London,  1911.    2  v. 
Piciotto,  C.  M.,  The  relation  of  international  law  to  the  law  of  England  and  the  law 

of  the  United  States  of  America,  London,  1915. 
Pi(5deli6vre,  R.,  Precis  de  droit  international  pubhc,  Paris,  1894-95.    2  v. 
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Pomeroy,  John  N.,  Lectures  on  international  law  in  time  of  peace  .  .  .  ed.  by  T.  S. 

Woolsey,  Boston,  1886. 
Pradier-Fodcre,  Paul  L.,  Traite  de  droit  international  pubhc  Europ^en  and  Americain, 

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best.) 
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English  by  Mr.  Carew,  London,  1749. 
Ralston,  J.  H.,  International  arbitral  law  and  procedure,  Boston,  1910. 
Rayneval,  Joseph  M . ,  Gerard  de.  Institutions  du  droit  de  la  nature  et  des  gens.    Nouv. 

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Rivier,  Alphonse,  Principes  du  droit  des  gens,  Paris,  1896.    2  v. 
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Baltimore,  1832. 
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BIBLIOGRAPHY    OF   GENERAL   WORKS  XXXV 

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probably  the  best.) 
Walker,  Thomas  A.,  A  manual  of  public  international  law,  Cambridge,  1895. 
Walker,  Thomas  A.,  The  science  of  international  law,  London,  1893. 
Walker,  Thomas  A.,  A  history  of  the  law  of  nations,  Cambridge,  1899. 
Westlake,  John,  Chapters  on  the  principles  of  international  law,  Cambridge,  1894. 
Westlake,  John,  International  law.    2nd  ed.,  Cambridge,  1910-1913.    2  v. 
Wharton,  Francis,  A  digest  of  the  international  law  of  the  United  States.    2nd  ed., 

Wash.,  1887.    3  v. 
Wheaton,  Henry,  Elements  of  international  law.     2nd  ed.  by  Lawrence,  Boston, 

1863.    8th  ed.  by  R.  H.  Dana,  Boston,  1866.    4th  English  edition  by  J.  B.  At- 

lay,  London,  1904. 
Wheaton,  Henry,  History  of  the  law  of  nations  in  Europe  and  America  from  the 

earliest  times  to  the  treaty  of  Washington,  1842,  New  York  and  Albany,  1845. 
Wildman,  Richard,  Institutes  of  international  law,  London,  1849-1850.    2  v. 
Wilson,  Geo.  G.,  International  law.    6th  ed.,  Boston,  New  York,  1913. 
WolfT,  Christian  von.  Institutions  du  droit  de  la  nature  et  des  gens,  Leide,  1772.    6  v. 
Woolsey,  Theodore  D.,  Introduction  to  the  study  of  international  law.    6th  ed.  rev., 

New  York,  1901. 
Zorn,  Albert,  Grundziige  des  Volkerrechts.     2.  vollstandig  neu  bearbeitete  aufl., 

Leipzig,  1903. 

PRIVATE  INTERNATIONAL  LAW 

Abreu,  Teixeira  de,  Relagoes  civis  internacionaes,  Coimbra,  1894. 

Alcorta,  Amancio,  Curso  de  derecho  internacional  privado,  Buenos  Aires,  1887-1892. 

3v. 
Algara,  Jose,  Leccioues  de  derecho  internacional  privado  (parte  general)  .  .  .  Mex- 
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Anzilotti,  Dionisio,  La  codificazione  del  diritto  internazionale  private  .  .  .  Firenze, 

1894. 
Anzilotti,  Dionisio,  Studi  critici  di  diritto  internazionale  private,  Roma  S.  Casciano, 

1898. 
Aeser,  T.  IM.  C,  Elements  de  droit  international  prive  .  .  .  Tr.  par  A.  Rivier,  Paris, 

1884. 
Audinet,  EugSne,  Principes  el^mentaires  du  droit  international  prive,  Paris,  1906. 
Bar,  L.,  The  theory  and  practice  of  private  international  law  .  .  .  2d  ed.  .  .  .  Tr. 

by  G.  R.  Gillespie,  Edinburgh,  1892. 
Bartin,  Etienne  A.,  Etudes  de  droit  international  prive,  Paris,  1899. 
Bevilaqua,  Principios  elementares  de  direito  internacional  privado,  Bahia,  1906. 
Bloch,  Alfred,  Normen  iiber  die  internationalen  Rechtsbeziehungen  auf  dem  Gebiete 

des  Zivil-  und  Strafrechtes,  Wien,  1910. 
Bbhm,  Ferdinand,  Die  raumliche  Herrschaft  der  Rechtsnormen  .  .  .  Erlangen,  1890. 
Brocher,  Charles,  Cours  de  droit  international  prive,  Paris,  1882-1885.    3  v. 
Bustamante  y  Sirven,  Antonio  S.  de,  Tratado  de  derecho  internacional  privado, 

Habana,  1896. 
Carrio,  V.  M.,  Apuntes  de  derecho  internacional  privado,  Montevideo,  1911. 


XXXVl  BIBLIOGRAPHY   OF   GENERAL   WORKS 

Catellani,  Enrico  L.,  II  diritto  internazionale  private  nel  sistema  del  diritto  inter- 

nazionale,  Milano,  1892. 
Catellani,  Enrico  L.,  II  diritto  internazionale  privato  ...  2.  ed.,  Torino,  1895-1902. 

2  V. 
Cavaglieri,   Arrigo,   Diritto  internazionale   privato  e   diritto  transitorio,   Verona, 

1904. 
Conde  y  Luque,  Rafael,  Derecho  internacional  privado,  Madrid,  1907-1910.    2  v. 
Conde  y   Luque,  Rafael,  Oficios  del  derecho  internacional  privado  .  .  .  Madrid, 

1901. 
Despagnet,  Frantz,  Precis  de  droit  international  prive.    5th  ed.,  Paris,  1909. 
Dicey,  Albert  V.,  A  digest  of  the  law  of  England  with  reference  to  the  conflict  of  laws. 

2nd  ed.,  London,  1908.    Same,  with  notes  of  American  cases,  by  John  Bassett 

Moore,  London,  Boston,  1896. 
Diena,  Giulio,  Trattato  di  diritto  commerciale  internazionale,  ossia  il  diritto  inter- 
nazionale privato  commerciale,  Firenze,  1900-05.    3  v, 
Federspiel,  Holger,  Den  internationale  privatret  i  Danmark,  Almindelig  del,  Kjoben- 

havn,  1909. 
Fem4ndez  Prida,  Joaquin,  Derecho  internacional  privado,  Valladolid,  1896. 
Gestoso  y  Acosta,  Luis,  Nuevo  tratado  de  derecho  internacional  privado,  Valencia, 

1913. 
Fiore,  Pasquale,  Diritto  internazionale  privato,  Torino,  1901-04.    4  v.    French  trans- 
lation, Paris,  1902-1907.    4  v. 
Foelix,  J.  J.  G.,  Trait6  du  droit  international  prive.  .  .  .    4th  ed.  by  Ch.  Demangeat, 

Paris,  1866.    2  v. 
Foote,  John  A.,  Foreign  and  domestic  law.    A  concise  treatise  on  private  interna- 
tional jurisprudence  .  .  .  4th  ed.,  London,  1914. 
Guimaraes,  Pedrosa  A.  S.,  Introducgao  ao  estudo  do  direito  privado  internacional  .  .  . 

Coimbra,  1878. 
Jettel,  Emil,  Handbuch  des  internationalen  Privat-und  Strafrechtes  .  .  .  Wien  und 

Leipzig,  1893. 
Jitta,  Daniel  J.,  La  m^thode  du  droit  international  priv6.  La  Haye,  1890. 
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Haye,  1906-1907.    2  v. 
Kazanskii,  Petr,  E.,  Principes  g6n6raux  de  droit  international  pnv6,  Paris,  1910. 
La  Broiie  de  Vareilles-Sommieres,  de,  La  synthase  du  droit  international  priv6,  Paris, 

1897.    2  v. 
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Langgaard  de  Menezes,  Rodrigo  O.  de,  A  codifica^ao  do  direito  internacional  privado, 

Porto,  1910. 
Langgaard  de  Menezes,  Rodrigo  O.  de,  L'union  juridique  des  nations,  au  point  de  vue 

du  droit  priv6,  Bruxelles,  1910. 
Laurent,  Frangois,  Droit  civil  international,  Bruxelles,  1880-1881.    8  v. 
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Ma886,  G.,  Le  droit  commercial  dans  ses  rapports  avec  le  droit  des  gens  et  le  droit 

civil.    2nd  ed.,  Paris,  1861-1862.    4  v.    3rd  ed.,  1874.    4  v. 
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London,  1905. 


BIBLIOGRAPHY    OF   GENERAL   WORKS  XXXVll 

Meili,  F,  u.  namelok,  A.,  Das  intemationale  Privat-  und  Zivilprozeesrecht  auf  Grund 

der  Haager  Konventionen,  Zurich,  1911. 
Minor,  Raleigh  C,  Conflict  of  laws,  Boston,  1901. 
Nelson,  Horace,  Selected  cases,  statutes  and  orders  illustrative  of  the  principles  of 

private  international  law,  London,  1889. 
Niemeyer,  Theodor,  Positives  internationales  Privatrecht  .  .  .  Leipzig,  1894, 
Niemeyer,  Theodor,  Vorschlage  und  Materialien  zur  Kodifikation  des  intemationalen 

Privatrechts  .  .  .  Leipzig,  1895. 
Pellerin,  Pierre,  A  digest  of  cases  decided  in  France  relating  to  private  international 

law,  London,  1913. 
P^rez  Verdfa,  Luis,  Tratado  elemental  de  derecho  internacional  privado,  Guadalajara, 

1908. 
Pillet,  Antoine,  Le  droit  international  prive,  consid^r^  dans  ses  rapports  avec  le  droit 

international  public  .  .  .  Paris,  1892. 
Pillet,  Antoine,  Principes  de  droit  international  prive,  Paris,  1903. 
Rattigan,  Wm.  H.,  Private  international  law,  London,  1895. 
Reuterskiold,  Carl  L.,  Handbok  i  svensk  privat  internationell  ratt  (process-utlam- 

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Savigny,  F.  C.  von,  Private  international  law.    Trans.,  with  notes,  by  Wm.  Guthrie. 

2nd  ed.,  Edinburgh,  1880. 
Story,  Joseph,  Commentaries  on  the  conflict  of  laws,  foreign  and  domestic.    8th  ed. 

by  M.  M.  Bigelow,  Boston,  1883. 
Surville,  F.  et  Arthuys,  F.,  Cours  elementaire  de  droit  international  prive.    5th  ed., 

Paris,  1910. 
Synnestvedt,  Magnus,  Le  droit  international  prive  de  la  Scandinavie,  Paris,  1904. 
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THE 

DIPLOMATIC  PROTECTION  OF  CITIZENS 

ABROAD 


PART  I 

RELATION   BETWEEN    STATE    AND    CITIZEN, 

BETWEEN  STATE  AND  ALIEN,  AND 

BETWEEN  STATE  AND  STATE 

CHAPTER  I 

INTRODUCTION 

§  1.  State  and  Individual. 

The  diplomatic  protection  of  citizens  abroad  is  a  comparatively 
modem  phenomenon  in  the  evolution  of  the  state,  in  constitutional  and 
in  international  law.  Not  mitil  the  legal  position  of  the  state  toward 
individuals,  both  its  own  citizens  and  aUens,  and  of  states  among  them- 
selves, had  become  clearly  defined  in  modem  public  law,  did  diplomatic 
protection  become  a  factor  in  international  intercourse. 

The  history  of  the  legal  relation  between  the  state  and  individuals, 
its  own  citizens  and  aliens,  is  largely  a  history  of  the  transition  from  the 
system  of  personal  laws  to  the  territoriahty  of  law,  accompanied  both 
by  a  growing  control  of  a  central  power  over  the  individuals  within  its 
jurisdiction  and  by  the  appearance  of  certain  characteristics,  territorial 
independence  and  sovereignty,  as  essential  qualifications  for  admission 
of  a  state  into  the  society  of  states.^ 

§  2.  Growth  of  Territoriality  of  Law. 

The  territoriahty  of  law,  an  accepted  phenomenon  of  modern  times, 
was  a  matter  of  slow  development.  The  Roman  law  was  not  applica- 
ble to  foreigners.    Strictly  speaking,  the  foreigner  was  an  outlaw.    Com- 

'  The  growth  of  the  state  and  of  modern  pohtical  society  cannot  be  here  discussed. 
The  subject  is  ably  treated  by  Edward  Jenks  in  his  History  of  poUtics,  London, 
New  York,  1900,  and  in  his  Law  and  politics  in  the  Middle  Ages,  2nd  ed.,  London. 
1913. 

3 


4  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

merce,  custom  and  religion  brought  about  an  amelioration  of  his  harsh 
condition  to  the  extent  of  permitting  the  application  of  the  foreigner's 
OAATi  law  in  legal  relations  among  foreigners  themselves  and  in  certain 
commercial  relations  with  Roman  citizens.  Even  this  privilege,  how- 
ever, was  extended  only  to  friendly  peoples.  The  German  tribes  were 
more  hospitable  to  the  foreigner,  although,  strictly  speaking,  he  was  a 
person  without  rights.  By  being  permitted  to  reside  among  them 
if  unchallenged  by  a  member  of  the  tribe,  the  foreigner  acquired  a 
precarious  measure  of  protection,  usually  assumed  bj^  the  king  or  leader 
of  the  tribe.  ^ 

In  the  commingUng  of  tribes  in  the  Frankish  Empire  and  in  the  ab- 
sence of  any  centralized  or  stable  legal  system  or  judicial  organization 
previous  to  the  time  of  Charlemagne,  each  tribe  lived  under  its  own  law 
and  the  personal  rights  and  acts  of  the  individual  and  his  legal  status 
were  regulated  and  judged  according  to  the  code  of  the  tribe  or  nation 
to  which  he  belonged. 

This  system  of  the  application  of  the  personal  laws,  as  they  were 
called,  was  bj^  no  means  analogous  to  the  privilege  of  living  under  their 
own  law  which  Rome  had  extended  to  certain  classes  of  friendly  aliens. 
In  the  Frankish  Empire,  there  was  an  equality  between  all  the  personal 
systems.  In  Rome,  only  the  Roman  law  was  universal,  and  its  enjoy- 
ment was  limited  to  Roman  citizens  alone.  The  use  of  foreign  systems 
was  a  special  concession  due  to  the  unwillingness  of  Rome  to  permit 
foreigners  to  share  in  the  benefits  of  the  Roman  civil  law.  In  the  Frank- 
ish Empire,  the  various  tribes  and  their  members  were  equal;  in  Rome 
the  position  of  the  non-Roman  was  one  of  legal  inferiority  and  such 
advantages  as  he  came  to  enjoy  consisted  in  the  removal  of  restrictions 
imposed  by  the  Roman  law.    The  Germanic  peoples,  before  their  inva- 

'  Bar,  L.  von,  Theory  and  practice  of  private  international  law  (Gillespie's  trans- 
lation), Edinburgh,  1892,  p.  12;  Bernheim,  A.  C,  History  of  the  law  of  aliens,  New 
York,  1885,  p.  7  et  seq.,  p.  18;  Frisch,  Hans  von,  Das  Fremdenrecht,  Berlin,  1910, 
pp.  5-22.  For  the  legal  position  of  aliens  in  early  law  see  the  following  works:  De- 
mangeat,  Charles,  Histoire  de  la  condition  civile  des  etrangers  en  France  dans  I'ancien 
et  dans  le  nouveau  droit,  Paris,  1844;  Sapey,  C.  A.,  Les  etrangers  en  France  sous 
I'ancien  et  le  nouveau  droit,  Pari.s,  1843;  Catellani,  E.,  II  diritto  internazionale  privato 
c  sui  recenti  progressi,  Torino,  1895,  2nd  ed.,  13  et  seq.;  Weiss,  A.,  Traite  de  droit 
international  priv6,  2nd  ed.,  Paris,  1908,  v.  2,  chap.  1. 


GROWTH   OF   TERRITORIALITY   OF    LAW  5 

sion  of  Rome,  knew  no  system  of  personal  laws,  for  it  was  their  universal 
custom  that  the  law  of  the  conquering  tribe  replaced  that  of  the  con- 
quered. The  master  abolished  the  law  of  his  slave,  and  substituted  his 
own.^  The  conditions  arising  out  of  the  conquest  of  such  a  cultured 
people  as  the  Romans  changed  this  custom,  and  in  the  coordinate  exist- 
ence of  the  Roman  system  and  the  body  of  tribal  systems  the  germ  was 
laid  for  the  recognition  of  the  personality  of  laws.^  The  Roman  law 
existed  side  by  side  with  that  of  the  dominant  conquering  tribe.^ 

The  two  great  exceptions  to  the  rule  of  the  personalitj'  of  laws  oc- 
curred in  cases  where  the  person's  individual  law  could  not  be  recognized 
and  those  where  such  recognition  was  contrary  to  the  public  interest. 
The  first  exception  apphed  to  aliens  and  non-Christians,  aliens  being 
those  whose  nations  were  not  included  under  the  Ejnpire.  As  has  been 
observed,  aliens  had  no  rights;  they  were  under  public  protection  and 
governed  by  the  law  of  their  protector.  An  individual  personal  law, 
moreover,  could  not  interfere  with  pubUc  law;  so,  for  example,  the 
criminal  law  soon  became  local  and  territorial. 

In  the  later  Middle  Ages,  various  influences  led  to  a  transition  from 
the  principle  of  the  personality  of  law  to  that  of  the  territoriality  of  law. 
With  the  development  of  agriculture  came  a  greater  permanency  of 
habitation  on  the  part  of  the  Germanic  nations.  The  fixed  attachment 
to  a  city  or  community,  and  intermarriage  between  members  of  the 
different  Germanic  nations,  made  it  difficult,  after  a  generation  or  two, 
to  keep  in  mind  individual  personal  laws;  so  that  courts  began  to  apply 
their  own  law,  derived  largely  from  the  capitularies  of  the  Emperor, 

'  Bar,  L.  von,  op.  cit.  18. 

2  Continental  Legal  History  Series,  v.  1,  General  survey  of  events,  sources,  persona, 
and  movements  in  continental  legal  history,  Boston,  1912,  p.  60  el  seq. 

'  At  the  present  day  we  may  note  the  survival  of  the  system  of  personal  laws  in 
the  fact  that  Europeans  live  in  various  parts  of  the  world  (Turkey,  China,  the  Malay 
peninsula,  some  of  the  Barbary  States)  under  their  own  law,  as  do  the  Indians  while 
on  their  reservations  in  this  country.  See  also  Asser-Rivier,  Elements  de  droit  inter- 
national prive,  Paris,  1884,  p.  7,  footnote.  In  the  conflict  of  laws  there  are  numerous 
cases  in  which  a  legal  relation  is  judged  by  the  so-called  "personal  statute,"  either 
the  law  of  the  domicil  or  of  the  nationality  of  the  individual  in  question,  though  this 
is  rather  an  outgrowth  of  the  jus  gentium  of  the  Romans  than  an  illustration  of  the 
modern  survival  of  the  personality  of  laws.  See  also  Savigny,  F.  C,  A  treatise  on 
the  conflict  of  laws,  translation  of  v.  8  of  his  System  des  heutigen  romischen  Rechts 
(1849)  by  William  Guthrie,  Edinburgh,  1880,  pp.  58,  60-62. 


6  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

which  applied  to  all  persons  within  the  Empire  without  discrimination 
of  race  or  nation.  Although  local  customs  continued  to  prevail,  they 
applied,  instead  of  to  distinct  individuals,  to  all  those  within  a  certain 
locaUty.  The  church,  by  its  dominance  in  certaui  spheres  of  law,  par- 
ticularly the  family  relations,  helped  to  substitute  legal  uniformity  for 
the  diversity  of  personal  laws. 

Feudalism,  however,  was  the  most  vital  factor  in  breaking  down  the 
principle  of  personality.  With  the  intermingling  of  the  races  under  a 
fixed  home  life,  with  the  final  acceptance  of  one  religion  to  replace 
paganism,  with  the  centralization  of  legal  relations  around  the  idea  of 
land  ownership,  personal  systems  lost  their  utility.  In  most  private 
legal  relations  one  rule  had  become  dominant  over  the  many  conflicting 
rules  previously  applied.  In  the  field  of  public  law  the  feudal  fief  became 
the  unit  of  administration,  and  within  it  all  classes  of  persons  having 
identical  rights  in  land,  had  identical  rights  and  duties  with  respect  to 
their  lord.    Within  the  various  classes  of  Uegemen  rights  were  equal. 

These  influences  ultimately  brought  about  the  disappearance  of  per- 
sonality as  the  criterion  of  the  application  of  law  and  substituted  terri- 
toriality and  local  uniformity,  notwithstanding  the  fact  that  certain 
groups,  such  as  the  citizens  of  certain  towns,  members  of  certain  guilds, 
and  churchmen  were  accorded  special  privileges  within  the  territorial 
limits.^ 

In  the  feudal  system  we  find  some  of  the  primary  elements  of  the  rela- 
tion between  the  state  and  its  citizen  and  the  protective  functions  of  the 
state.  Feudalism  embodied  the  notion  of  the  territoriality  of  rights 
with  the  personal  relation  between  lord  and  liegeman  now  known  under 
modern  transformations  as  sovereignty.  Although  land  ownership  be- 
came an  index  of  rights  and  duties,  thus  strengthening  the  territorial 
principle,  and  the  oath  of  personal  allegiance  established  the  reciprocal 
obligations  of  protection  and  service  between  the  feudal  lord  and  his 
liegeman,  it  is  to  be  noted  that  the  lord's  jurisdiction  and  control  over 
his  man  did  not  transcend  the  boundaries  of  his  fief.  It  was  only  with 
the  French  Revolution,  which  emphasized  the  rights  of  the  individual, 
both  at  home  and  abroad,  that  a  definite  practice  arose  of  extending 
diplomatic  protection  to  citizens  abroad. 

'  General  survey  of  continental  legal  history,  80-83;  Savigny,  op.  cit.  63-74. 


NATURE    OF    CITIZENSHIP 


NATIONALITY 


§  3.  Development  of  Nationality. 

The  Thirty  Years'  War  was  an  epoch-making  event  in  the  history  of 
international  law.  It  was  not  merely  a  great  struggle  between  Protes- 
tantism and  Roman  Catholicism,  but  from  it  emerged  the  principle  of 
territorial  independence  as  opposed  to  imperialism.^  The  international 
system  of  the  present  day  was  definitely  marked  out  and  the  character- 
istics of  the  modern  state  defined.  While  unequal  in  power,  the  states 
in  the  system  were  recognized  each  as  independent,  as  legally  equal,  and 
as  exercising  exclusive  jurisdiction  within  certain  definite  territorial 
limits.  The  removal  of  the  common  superior  fostered  what  had  in  fact 
for  years  been  a  sense  of  national  independence  and  national  conscious- 
ness. Overshadowed  for  a  time  by  the  religious  attributes  of  the 
Reformation,  and  obscured  by  feudal  particularism,-  nationaUty 
emerged  at  the  peace  of  WestphaUa  as  a  phenomenon  distinct  from 
religion. 

§  4.  Nature  of  Citizenship. 

Citizenship  (or  nationality)  is  the  status  of  an  individual  as  subject 
or  citizen  in  relation  to  a  particular  sovereign  or  state,  and  signifies 
membership  in  an  independent  pohtical  community.  It  traces  its 
origin  to  the  time  when  the  city  was  the  largest  autonomous  unit  to 
which  the  individual  was  attached  and  its  meaning  has  expanded 
with  the  growth  of  that  unit  into  the  modern  state.  It  involves  a 
legal  and  political  relationship  between  the  state  and  the  citizen,  by 
virtue  of  which  he  is  endowed  with  certain  qualities  distinguishing 
him  from  other  individuals.^  The  conditions  on  which  citizenship 
shall  be  acquired  and  granted,  the  individuals  to  whom  this  status 
shall  be  extended,  and  the  rights  and  obligations  incurred  by  the  re- 
lationship are  fixed  by  the  municipal  public  law  of  each  state.     Al- 

*  Walker,  T.  A.,  A  history  of  the  law  of  nations,  Cambridge,  1899,  I,  148  et  seq. 

*  Brissaud,  J.,  A  history  of  French  private  law,  Boston,  1912,  p.  874. 

'  Gerber,  C.  F.,  Grundzuge  des  deutschen  Staatsrechts,  Leipzig,  1880,  3rd  ed.,  229; 
Morse,  A.  P.,  A  treatise  on  citizenship,  Boston,  1881,  pp.  x,  4,  36;  Foote,  J.  A., 
Foreign  and  domestic  law.  Private  international  jurisprudence,  4th  ed.  by  Coleman 
Phillipaon,  London,  1914,  p.  1. 


8  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

legiance,  the  tie  which  binds  the  citizen  to  the  pohtical  group  to  whieii 
he  belongs,  is  due  to  the  state,  the  juristic  personaUty  of  the  nation. 

Citizenship  is  essentially  a  personal  relationship,  as  is  sovereignty 
or  the  supreme  legal  authority  of  the  state  over  those  whom  it  con- 
trols. The  subjects  of  the  state  are  all  those  persons  over  whom  it 
exercises  sovereignty,  which  in  constitutional  law  include  not  merely 
citizens,  but  aliens  residing  within  its  territory  or  otherwise  subject  to 
its  control.  A  territory  is  not  in  fact  an  essential  element  of  sov- 
ereignty^, although  international  law  has  arbitrarily  conditioned  the 
enjoj'ment  of  membership  in  the  international  community  on  the  pos- 
session of  a  territor3^^  It  is  by  virtue  of  the  personal  relationship  in- 
volved in  sovereignty  and  citizenship  that  the  state  may  declare  its 
laws  binding  on  its  citizens  even  when  abroad  and  by  virtue  of  which 
its  obligations  to  those  non-resident  citizens  continue  to  exist. - 

Jurisdiction,  or  the  right  of  phj'sical  control  over  persons,  has,  how- 
ever, become  territorial,  and  thus  it  occurs  that  the  laws  of  the  state, 
while  theoretically  binding  on  the  subject  so  far  as  made  applicable  to 
him,  are  unenforceable  beyond  the  territorial  hmits  of  the  state,  unless 
accompanied  by  extraterritorial  jurisdiction  or  enforced  by  the  foreign 
sovereign  by  international  arrangement.'^  In  countries  in  which  extra- 
territorial privileges  are  enjoyed,  both  sovereignty  and  jurisdiction 
may  be  exercised  beyond  the  territorial  limits,  as  is  illustrated  by  the 

'  Crane,  Robert  T.,  The  state  in  constitutional  and  international  law,  Baltimore, 
1907,  p.  69;  Hall,  International  law,  6th  ed.,  Oxford,  1909,  pp.  17,  19. 

-  Congi'ess  exercises  the  right  to  regulate  certain  acts  of  United  States  citizens 
abroad  and  attach  prescribed  consequences  to  those  acts.  E.  P.  Wheeler,  The  rela- 
tion of  a  citizen  in  a  foreign  country,  in  3  A.  J.  I.  L.  (Oct.  1909)  871,  and  cases  there 
cited.  In  England  this  right  rests  on  Crown  prerogative,  acts  of  Parliament  and 
common  law.  See  Hall,  W.  E.,  Foreign  powers  and  jurisdiction  of  the  British  Crown, 
Oxford,  1894,  pp.  8-13.  See  also  Fiore,  P.,  Nouveau  droit  international  public 
(Antoine's  trans.),  Paris,  188.5,  §  644;  Lomonaco,  G.,  Trattato  di  diritto  internazionale 
pubblico,  NapoU,  190.5,  p.  166;  Martens,  F.  de,  Traite  de  droit  international,  Paris, 
1883,  I,  442;  Despagnet,  Frantz,  Cours  de  droit  international  public,  4th  cd.,  Paris, 
1910,  p.  467. 

'  The  notion  that  citizens,  resident  abroad,  by  virtue  of  their  allegiance  still  fall 
under  the  operation  of  the  laws  of  their  national  state,  is  a  fallacy  often  encountered 
in  the  writings  of  publicists.  They  are  subject  only  to  such  national  laws  as  the 
legislature  expressly  niakes  binding  upon  them.  See  Piggott,  Nationality,  London, 
190(j,  I,  3. 


NATURE   OF   THE    BOND  9 

consular  courts  of  various  powers  of  the  first  class  in  countries  like 
China  and  Turkey.  The  will  of  the  state,  therefore,  is  not  merely 
limited  in  its  expression  by  its  constitution  and  laws,  but  its  enforce- 
ment is  limited  externally — except  for  the  grace  of  other  states,  due 
to  custom  or  comity — by  the  territorial  boundaries  of  the  state.  ^ 

§  5.  Nature  of  the  Bond. 

In  pure  constitutional  theorj-^,  citizenship  is  imposed  by  the  state, 
by  virtue  of  its  sovereignty,  on  whomsoever  it  will,  and  independently 
of  the  will  of  the  person.  It  is  not  created  by  or  at  the  consent  of 
the  individual.-  The  theory  is  Umited  in  its  application  by  the  in- 
ternational rule  that  states  permit  their  subjects  to  acquire  a  new 
citizenship,  or  rather  predicate  their  recognition  of  such  a  change,  on 
the  condition  that  it  shall  have  been  a  voluntary  act  of  the  subject 
accompanied  b}'^  an  actual  change  of  domicil  and  pohtical  affiliation. 

Andre  Weiss,  the  eminent  jurist  of  Paris,  has  presented  an  in- 
genious and  plausible  argument  to  show  that  citizenship  or  nationality 
is  contractual  in  its  nature.^  *'Tt  is  to-day  generally  recognized," 
says  Weiss,  "that  the  bond  of  nationality  is  a  contractual  one;  and 
that  the  bond  which  unites  to  the  state  each  of  its  citizens  is  formed 
by  an  agreement  of  their  walls,  express  or  impUed.''  This  theory  has 
been  severely  criticized,  among  others  b}'  Stoerk  ^  and  by  Piggott,'^ 
and  it  is  now  considered  fallacious.  Some  modem  authors,  however, 
find  in  the  grant  of  nationahty,  i.  c,  naturalization,  a  pubUc  legal 
act  of  a  bilateral  character,^  but  even  these  pubhcists  admit  that  the 

iW.  W.  Willoughby  in  1  A.  J.  I.  L.  (1907)  925;  Heilborn,  P.,  System  des  Vol- 
kerrechts,  Berlin,  1896,  p.  75  et  seq.,  and  opinions  of  Gierke,  Oertraann,  Gerber  and 
Laband  there  cited. 

2  WiUoughby  in  1  A.  J.  I.  L.  (1907)  924. 

3  Annuaire  de  I'lnstitut  de  Droit  International,  v.  13  (1894),  162  et  seq.  See  also 
Cogordan,  Droit  des  gens.    La  nationality,  2nd  ed.,  Paris,  1890,  §  2. 

*  Stoerk,  F.,  Les  changements  de  nationalite  et  le  droit  des  gens  in  2  R.  G.  D.  I.  P. 
(1895)  273  et  seq.  See  also  Nys,  E.,  Le  droit  international,  2nd  ed.,  Bruxelles,  1912, 
II,  257. 

'  Piggott,  F.  T.,  Nationality,  London,  1906,  I,  5-10. 

^Laband,  Paul,  Das  Staatsrecht  des  deutschen  Reichs,  oth  ed.,  Leipzig,  1911, 
p.  177;  Jellinek,  Georg,  System  der  subjectiven  offentlichen  Rechte,  2nd  ed.,  Tu- 
bingen, 1905,  p.  198.  The  majority  of  publicists  deny  that  the  conceptions  of  pri- 
vate law  furnish  any  analogy  to  the  peculiar  relations  created  by  public  law.    See 


10  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

relation  is  not  analogous  to  a  private  contractual  obligation  but  rather 
to  the  contract  of  adoption  in  family  law. 

The  relation  between  the  citizen  and  his  state  is  in  fact  a  relation 
sui  generis.  Admission  into  membership  in  the  state  and  to  the  status 
of  citizenship  is  an  act  of  sovereignty.  Being  neither  a  contract 
nor  an  act  of  grace,  Stoerk  has  denominated  it  a  sociological  fact,  a 
distinguishing  mark  of  the  state  itself.^  In  discussing  expatriation,  the 
United  States  Supreme  Court,  on  several  occasions  prior  to  the  ex- 
patriation act  of  July  27,  1868  (R.  S.  1999),  expressed  the  opinion 
that  "the  doctrine  of  allegiance  .  .  .  rests  on  the  ground  of  a  mutual 
compact  between  the  government  and  the  citizen  or  subject,  which 
it  is  said,  cannot  be  dissolved  by  either  party  without  the  concur- 
rence of  the  other."  ^ 

The  theory  of  a  compact  in  the  relation  between  the  state  and  its 
citizens  has  engaged  the  attention  of  political  philosophers  for  cen- 
turies. It  became  important  in  the  eighteenth  century  when  some 
writers  in  the  American  colonies,  appealing  to  the  Englishman  Locke, 
forcefully  advanced  the  theory  that  the  individual  enters  the  state  by 
voluntary  agreement,  and  may  establish  the  conditions  of  his  mem- 
bership and  the  limitations  of  the  power  of  the  state.  In  France, 
Montesquieu  and  Rousseau  were  its  most  prominent  champions.  In 
arriving  at  the  true  legal  relation  between  the  state  and  the  individual 
we  are  not  concerned  with  either  of  the  political  theories  (1)  that  the 
entire  sphere  of  right  of  the  individual  is  the  product  of  state  con- 
cession and  permission,  or  (2)  that  the  state  not  only  creates  rights  but 
leaves  the  individual  that  measure  of  liberty  which  it  does  not  itself 
require  in  the  interest  of  the  whole. ^ 

Stoerk,  Felix,  Zur  Methodik  des  offentlichen  Rechts,  Wien,  1885,  and  authorities 
there  cited. 

1  Stoerk  in  2  R.  G.  D.  I.  P.  (1895)  288. 

^  Inglis  V.  Sailor's  Snug  Harbor,  3  Peters  (1830),  124;  Talbot  v.  Janson,  3  Dallas 
(1795),  1G2.  See  also  cases  cited  by  Wise,  J.  S.,  American  citizenship,  Northport, 
190G,  p.  2G3.  While  not  a  mutual  compact,  it  is  true  that  as  a  status  imposed  by 
the  state,  citizenshii)  and  allegiance  could  only  be  renounced  when  permitted  by  the 
state.  In  most  modern  states,  except  Russia  and  Turkey,  municipal  legislation 
has  granted  the  individual  this  power. 

» On  this  entire  subject  see  Jc^llinek,  G.,  The  declaration  of  the  rights  of  man  and 
of  citizens,  New  York,  1901  (Max  Farrand's  translation),  80,  90  and  95. 


SOURCE   OF   RIGHTS   OF   INDIVIDUAL  11 

§  6.  "  Temporary  Allegiance  "  of  Aliens. 

Foreigners  within  the  state  owe  it  a  considerable  measure  of  obe- 
dience in  return  for  the  local  protection  they  receive  while  residents. 
This  obedience  has  often  been  termed  temporary  and  qualified  al- 
legiance in  contradistinction  to  the  permanent  and  absolute  allegiance 
owed  by  the  citizen.^  In  truth,  it  is  a  misnomer  to  speak  of  "tem- 
porary allegiance"  due  by  a  foreigner.  The  nature  of  the  foreigner's 
subjection  to  the  state  of  his  residence  was  described  by  Secretary  of 
State  Webster  in  1851  in  his  report  on  Thrasher's  case  as  follows:  ^ 

Independently  of  a  residence  with  intention  to  continue  such  resi- 
dence; independentl}'  of  any  domiciliation;  independently  of  the  taking 
of  any  oath  of  allegiance  or  of  renouncing  Siny  former  allegiance,  it  is 
well  known  that,  by  the  public  law,  an  alien  or  a  stranger  born,  for  so 
long  a  time  as  he  continues  within  the  dominions  of  a  foreign  govern- 
ment, owes  obedience  to  the  laws  of  that  government,  and  may  be  pun- 
ished for  treason  or  other  crimes  as  a  native  bom  subject  might  be,  unless 
his  case  is  varied  by  some  treaty  stipulation. 

The  migration  of  the  citizen  of  one  state  to  another  and  his  resi- 
dence in  the  latter  brings  about  in  constitutional  theory  a  double 
citizenship,  of  primary  and  organic  nature  with  respect  to  his  home 
state  and  of  a  temporary  and  qualified  nature  with  respect  to  the 
state  of  residence.  It  subjects  the  individual  for  different  purposes 
and  in  different  degrees  to  the  sovereignty  of  two  states.  The  con- 
flicting claims  of  two  or  more  states  to  the  citizenship  and  obedience 
of  the  same  individual  have  been  to  a  great  extent  settled  by  mutual 
forbearances,  although  differences  in  municipal  legislation  in  some  in- 
stances still  give  rise  to  cases  of  double  nationality  and  even  of  no 
nationality  (Heimatlosen) .  ^ 

§  7.  Source  of  Rights  of  Individual. 

Nationality  (a  less  ambiguous  term  than  its  synonym,  citizenship) 
is  the  most  important  of  the  three  relations  in  which  a  person  may 

1  Mr  Justice  Field  in  Carlisle  v.  United  States,  16  Wallace,  147,  at  154;  adopted 
by  Willoughby  in  1  A.  J.  I.  L.,  924. 

*  The  works  of  Daniel  Webster,  Boston,  1851,  VI,  518,  at  526,  cited  also  in  Car- 
lisle V.  United  States,  16  Wall.  155;  see  also  Mr.  Justice  Gray  in  United  States  v. 
Wong  Kim  Ark,  169  U.  S.  649. 

» Cogordan,  op.  cit.,  11-14. 


12  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS    ABROAD 

be  subject  to  the  control  of  a  particular  state.  These  three,  in  the 
order  of  the  closeness  of  the  bond,  are  actual  residence,  domicil,  and 
nationality  or  citizenship  {Staatsangehorigkeit,  nationalite) .^  Used  in 
the  ethnographic  sense,  a  nation  is  a  collection  of  human  beings  held 
together  by  certain  common  physical  or  racial  characteristics;  used  in 
the  legal  sense,  it  denotes  a  poUtically  united  people,  and  its  deriva- 
tive "nationality"  is  used  to  represent  the  bond  which  attaches  the 
citizen  by  certain  qualities  to  the  state. ^  It  has  already  been  noted 
that  by  virtue  of  the  bond  the  citizen  is  provided  with  certain  rights, 
in  particular,  political  rights,  and  is  charged  with  the  performance 
of  certain  duties  to  his  state  in  return  for  the  benefits  of  citizenship.^ 
Stoerk  and  Oppenheim  believe  that  nationality  is  a  condition  prece- 
dent to  the  enjoyment  of  international  rights,  a  statement  which  von 
Bar  refutes  by  showing  that  heimatlosen  or  those  without  nationality 
are  entitled  to  these  rights.*  International  rights  are  commonly  con- 
sidered to  be  those  which  are  universally  accorded  by  the  national 
law  of  all  civiUzed  states  to  individuals  within  its  jurisdiction. 

Confusion  arises  because  in  the  present  state  of  our  civilization,  the 
individual,  as  a  human  being,  is  accorded  certain  fundamental  rights 
by  all  states  professing  membership  in  the  international  community. 
In  constitutional  governments,  they  have  often  received  the  name 
''rights  of  man."  These  rights,  uncertain  as  they  are  in  content,  were 
denominated  by  Blackstone  as  the  absolute  rights  of  all  mankind, — the 
right  to  personal  security,  to  personal  liberty  and  to  private  property.^ 
At  one  period  in  the  history  of  law  they  were  known  as  "natural 

*  Cogordan,  op.  cit.,  §  1. 

^  Bar,  op.  cit.,  Ill;  Stoerk  in  Holtzendorff's  Handbuch  des  Volkerrechts,  Berlin. 
1885,  II,  589-591. 

'  Stoerk  in  Holtzendorff's  Handbuch,  II,  630-636;  Heilborn,  op.  cit.,  75  et  seq.; 
Oppenheim,  International  law,  London,  1912,  §291;  Gareis,  K.  Institutionen  des 
Volkerrechts,  Giessen,  1901,  §  53;  Cockburn,  Alexander,  Nationality,  London,  1869, 
p.  186;  Nys,  E.,  op.  cit.,  II,  257. 

*  Stoerk  in  Holtzendorff's  Handbuch,  II,  §  114,  p.  589;  Oppenheim,  op.  cit.,  I, 
§291;  Bar,  op.  cit.,  111. 

*  What  is  regarded  as  private  property  may  differ  from  state  to  state,  e.  g.,  slav(>s 
were,  until  recently,  property  in  some  states.  Sec  The  Amistad,  15  Pet.  518;  The 
Creole,  30  St.  Pap.  181-193.  These  rights  may,  of  course,  be  forfeited  to  society 
by  due  process  of  law.    See  Kepner  v.  U.  S.,  195  U.  S.  100. 


SOURCE   OF    RIGHTS    OF   INDIVIDUAL  13 

rights,"  and  this  conception  played  a  prominent  part  in  justifying  the 
eighteenth  centuiy  poUtical  philosophy  which  culminated  in  the 
French  Revolution.^  These  rights,  as  incidental  to  natural  law,  the 
adherents  of  which  school  of  legal  philosophy  were  the  founders  of 
international  law,  were  logically  denominated  international  rights  and 
sometimes  human  rights.  Whether  the  recognition  of  these  rights  is 
the  result  of  history  and  the  unconscious  growth  of  law  or  whether 
it  is  the  result  of  conscious  legislation,^  it  is  certain  that  by  legislative 
and  judicial  declaration  certain  fundamental  rights  of  the  individual 
in  a  ci\dUzed  state  have  been  positivized  in  the  same  way  that  the 
Roman  jurisconsults  by  their  jus  respondendi  positivized  the  principles 
of  the  jus  naturale.^  These  rights,  like  all  rights,  are  really  creations 
of  public  sentiment,  legally  protected  interests,  which  may  be  ex- 
pressed either  by  custom  or  legislation. 

If  these  rights  of  a  resident  aUen  are  violated  without  proper  redress 
in  the  state  of  residence,  his  home  state  is  warranted  by  international 
law  in  coming  to  his  assistance  and  interposing  diplomatically  in  his 
behalf.  Reasoning  from  this  fact,  many  publicists  assert  that  what- 
ever rights  the  individual  has  in  a  state  not  his  own  are  derived  from 
international  law,  and  are  due  him  by  virtue  of  his  nationaUty.  As 
a  matter  of  fact,  the  alien  derives  most  of  his  rights — fundamental 
or  human  rights  and  others — by  grant  from  the  territorial  legislature, 
international  law  fixing  a  minimum  which  cannot  be  overstepped  and 
authorizing  certain  agencies,  usually  the  national  state,  to  remedy  and 
punish  a  breach.  Whether  these  "rights  of  humanity"  have  their 
origin  in  international  law,  or  are  merely  concomitants  of  existence  in 
a  civiUzed  state,  the  recognition  of  which  rights  a  state  must  show  as 

*  For  the  history  of  natural  rights  and  the  modern  theories  see  Ritchie,  D.  G., 
Natural  rights,  London,  1895,  chs.  1  and  2.  An  anah'sis  of  the  so-called  rights  is 
undertaken  by  Ritchie,  ch.  6  et  seq. 

*  For  a  summary  account  of  the  history  of  legal  theory  and  the  various  schools  of 
legal  thought  see  Borchard,  E.  M.,  Guide  to  the  law  and  legal  literature  of  Germany, 
Washington,  1912,  2.5  et  seq. 

■'  See  Muirhead,  James,  Historical  introduction  to  the  private  law  of  Rome, 
London,  1899,  2nd  ed.,  283.  See  also  1  Annuaire  of  the  Institute  of  Int.  Law,  124. 
The  Supreme  Court  has  recognized  the  existence  of  these  "fundamental  rights"  in 
Hawaii  v.  Mankichi,  190  U.  S.  197,  217;  Kepner  v.  U.  S.,  195  U.  S.  100,  123;  Dorr  v. 
U,  S.,  195  U.  S.  138,  144. 


14  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

a  condition  of  membership  in  the  international  community,  interna- 
tional law,  nevertheless,  provides  them  with  a  definite  sanction.^ 
This  view,  it  would  seem,  is  confirmed  by  the  fact  that  where  a  state 
under  exceptional  circumstances  disregards  certain  rights  of  its  own 
citizens,  over  whom  presumably  it  has  absolute  sovereignty,  the  other 
states  of  the  family  of  nations  are  authorized  by  international  law 
to  intervene  on  grounds  of  humanity.  When  these  "human"  rights 
are  habitually  violated,  one  or  more  states  may  intervene  in  the 
name  of  the  society  of  nations  and  may  take  such  measures  as  to 
substitute  at  least  temporarily,  if  not  permanently,  its  own  sovereignty 
for  that  of  the  state  thus  controlled.^  Whatever  the  origin,  therefore, 
of  the  rights  of  the  individual,  it  seems  assured  that  these  essential 
rights  rest  upon  the  ultimate  sanction  of  international  law,  and  will 
be  protected,  in  last  resort,  by  the  most  appropriate  organ  of  the 
international  community — the  national  state  of  the  individual  or  those 
states  whose  interests  are  most  directly  affected. 

The  rights  of  man  as  proclaimed  by  the  poUtical  philosophers  of  the 
American  and  the  French  revolution  were  given  positive  constitu- 
tional expression  in  France  and  the  United  States  in  1789,^  and  since 
then  have  in  some  form  been  incorporated  in  most  modern  constitu- 

1  See  Opinion  of  Central-American  Court  of  Justice  in  Diaz  v.  Guatemala,  3  A.  J.  I. 
L.  (1909)  743. 

2  Rougier,  La  thdorie  de  I'intervention  d'humanite  in  17  R.  G.  D.  I.  P.  (1910),  472. 
Thus  intervention  on  behalf  of  co-religionists  in  the  Orient  and  elsewhere  has  on 
numerous  occasions  been  undertaken.  Pillet,  A.,  Principes  de  droit  international 
prive,  Paris,  1903,  p.  171.  See  the  interesting  discussion  on  the  abolition  of  torture 
in  Morocco  and  European  intervention  in  17  R.  G.  D.  I.  P.  (1910)  98.  Lawrence 
(4th  ed.)  129,  considers  interventions  on  the  ground  of  humanity  as  outside  the 
ordinary  rules  of  international  law. 

'  There  had  been  a  definite  declaration  of  rights  in  Virginia  in  1776,  and  the  pre- 
amble and  first  paragraph  of  the  Declaration  of  Independence  of  July  4,  1776  was 
in  the  nature  of  a  declaration  of  rights.  These  documents  with  the  French  Declara- 
tion des  droits  de  I'homme  et  du  citoyen  of  1789,  as  prefixed,  with  amendments,  to 
several  French  constitutions,  are  to  be  found  in  the  appendix  to  Ritchie,  op.  cit.  See 
also  th(;  first  ten  amendments  to  the  United  States  Constitution. 

These  rights  of  man  had  been  the  subject  of  discussion  by  poUtical  philosophers 
of  France  and  England  for  many  years  before  1789.  They  received  most  forceful 
expression  in  the  American  colonies  in  numerous  pamphlets  and  tracts,  notably  those 
of  James  Otis  and  Samuel  Adams.  Sec  Jellinck,  G.,  The  declaration  of  the  rights 
of  man  and  of  citizens  (translated  by  M.  Farrand),  New  York,  1901,  pp.  80-84. 


NATIONALITY    AS   TITLE    TO    INTERNATIONAL   REDRESS  15 

tions.     The  municipal  law  of  each  state  prescribes  the  manner  in 
which  these  rights  shall  be  exercised. 

Among  the  rights  which  have  been  considered  as  the  rights  of  man 
are  those  to  which  international  lawyers  have  applied  the  term  "in- 
ternational rights,"  those  general  rights  which  the  individual  enjoys 
in  every  civilized  country  and  which  are  normally  protected  by  every 
state  of  the  international  family.  Fiore  ^  enumerates  these  rights  as 
(1)  the  right  of  personal  liberty;  (2)  the  right  of  property;  (3)  the 
right  to  exercise  civil  rights  in  conformity  with  the  public  law  of  the 
state;  (4)  the  right  of  religious  worship.  Martens  ^  includes  among  the 
imprescriptible  rights  of  man  the  right  to  live  and  procure  the  means 
to  live;  the  right  to  develop  intellectual  faculties;  the  freedom  of 
emigration  and  intercourse;  and  the  right  to  be  respected  in  person, 
life,  honor,  health  and  property.  With  this  universality  of  rights  of 
the  individual  in  view,  Stoerk  and  others  have  coined  the  term  "  VoU 
kerrechtsindigenat,'^  ^  or,  as  Bentham  has  expressed  it,  "citizen  of  the 
world."  ^ 

§  8.  Nationality  as  Title  to  International  Redress  for  Violation  of 
Rights. 
The  alien,  it  has  been  observed,  possesses  other  than  human  rights. 
These  other  rights,  e.  g.  copyright,  trade-mark  rights  and  commercial 
rights  generally,  are  derived  either  from  the  municipal  law  of  the  state 
of  residence  or  from  treaties  and  conventions  concluded  for  his  benefit 
by  his  home  government.  It  is  only  the  latter  class  of  rights,  which 
are  not  enjoyed  by  aliens  generally  under  the  municipal  law  of  the 

^  Fiore,  P.,  Nouveau  dr.  int.  pub.  (Antoine's  trans.)  §  697. 

2  Martens,  F.  de,  Traite  de  droit  international,  Paris,  188.3,  I,  440.  See  also  Gareis, 
op.  cit.  150.  Esmein  divides  the  individual  rights  recognized  by  public  law  into  two 
categories:  (1)  civil  equality,  or  equal  rights  and  duties,  and  (2)  individual  liberty, 
or  the  material  and  moral  interests  of  the  individual.  See  Esmein,  Elements  de  dr. 
const.,  p.  369,  cited  by  Nys,  II,  257.    See  also  A.  H.  Snow  in  8  A.  J.  I.  L.  (1914)  196. 

^Stoerk  in  Holtzendorff's  Handbuch,  II,  §§  113-114;  Gareis,  op.  cit.,  §53.  See 
Rivier,  Principe^,  I,  12,  Oppenheim,  I,  §  291,  and  Bluntschli,  §  23,  citing  Kant. 
Triepel  and  Jelliaek  consider  the  concept  of  Volkerrechtsindigenat  as  worthless. 
Triepel,  H.  Volkerrecht  und  Landesrecht,  Leipzig,  1899,  p.  14;  Jellinek,  G.,  System 
der  subjektiven  offentUchen  Rechte,  2nd  ed.,  1905,  p.  324. 

*  Extracts  printed  in  Wheaton's  History  of  the  law  of  nations.  New  York,  1845, 
pp.  329-331. 


16  THE   DIPLOMATIC   PROTECTION   OF    CITIZENS   ABROAD 

state  of  residence,  that  he  may  properly  be  regarded  as  possessing 
by  virtue  of  his  nationahty.  The  aUen  thus  has  rights  as  an  in- 
dividual and  as  a  member  of  a  definite  political  group.  While,  there- 
fore, we  must  look  far  beyond  his  nationality  to  find  a  guide  to  the 
complete  source  of  the  alien's  rights,  it  is  nevertheless  true  that  in 
giving  effect  to  and  providing  a  sanction  for  his  rights,  his  nationality 
is  the  most  important  factor,  for  it  is  by  virtue  of  the  bond  of  nation- 
ality that  he  is  entitled  to  invoke  the  aid  of  a  specific  protector  and 
that  a  definite  member  of  the  international  society  of  states  has  the 
right  to  interpose  in  his  behalf  to  secure  a  guarantee  for  his  rights  and 
reparation  for  their  violation.  The  security  of  international  relations 
rests  largely  upon  this  fact. 

§  9.  Position  of  the  Individual  in  International  Law. 

It  seems  unnecessary  to  review  at  any  length  the  learned  discussions 
in  which  particularly  the  German  and  Italian  writers  on  international 
law  have  engaged  in  an  endeavor  to  define  the  exact  position  of  the 
individual  in  international  law.  Using  the  term  "subjects"  of  law  to 
connote  those  upon  whom  the  law  confers  rights  and  imposes  duties, 
the  weight  of  authority  considers  states  alone  as  the  subjects  of  in- 
ternational law,^  and  individuals  as  objects  of  international  law.' 
This  conclusion  is  based  on  the  theory  that  international  law  cannot 
ascribe  rights  and  duties  to  individuals  directly,^  and  that  individuals 

^  Heilborn,  P.,  System,  58  et  seq.;  Stoerk  in  Holtzendorff's  Handbuch,  II,  §§  11.3, 
114;  Jellinek,  System  der  subjektiven  off.  Rechte,  2nd  ed.,  1905,  p.  324;  Triepel, 
H.,  Volkerrecht  u.  Landesrecht,  Leipzig,  1899,  20-21;  Lomonaco,  218;  Diena,  G., 
Diritto  int.  pubblico,  Napoli,  1908,  p.  242,  and  in  16  R.  G.  D.  I.  P.  (1909)  57;  Chre- 
tien, Principes  de  droit  int.  pub.,  Paris,  1893,  p.  76.  See  the  excellent  discussion  in 
Oppenheim,  2nd  ed.,  I,  §§  13,  63  and  288  et  seq.  See  also  Benjamin,  Fritz,  Haftung 
des  Staates  aus  dem  Verschulden  seiner  Organe  nach  Volkerrecht,  Breslau,  1909, 
pp.  14-17;  and  Marinoni,  Mario,  La  responsabilita  degli  stati,  etc.,  Rome,  1914, 
pp.  8-10,  note. 

^  Heilborn,  System,  64  et  seq.,  and  in  Handbuch  des  Volkerrechts,  Stuttgart,  1912, 
I,  1,  §  17;  Triepel,  op.  cit.,  21;  Diena  in  16  R.  G.  D.  I.  P.  (1909)  58;  Oppenheim,  I, 
§290. 

'  Oppenheim,  I,  §  289  and  authorities  just  cited.  Rehm  in  1  Zcitschr.  f.  Volker- 
recht, 53-55,  presents  a  good  argument  to  show  that  in  matters  of  contraband  carriage, 
blockade  and  piracy,  international  law  actually  imposes  duties  of  abstention  upon 
individuals,  the  breach  of  which  is  punishable  by  internationally  recognized  metboda. 


POSITION  OF  THE   INDIVIDUAL   IN   INTERNATIONAL   LAW  17 

cannot  invoke  for  their  protection  a  rule  of  international  law  which 
has  not  been  incorporated  in  municipal  law,  i.  e.,  to  use  Jellinek's 
term,  individuals  have  no  subjective  rights  based  upon  international 
law.^  Some  writers  like  Heffter,  Fiore,  Martens,  Kaufmann  and 
Bonfils  -  consider  individuals  as  subjects  of  international  law.  This 
conclusion  is  based  upon  different  reasons,  and  finds  some  support 
in  the  following  circumstances:  (1)  by  the  Washington  conventions  of 
1907,  an  individual  was  given  the  right  to  sue  one  of  the  Central 
American  states  before  the  Court  of  Justice  established  at  Cartago, 
and  two  such  suits  appear  to  have  been  brought ;  (2)  by  the  unratified 
Prize  Court  convention  concluded  at  The  Hague  in  1907,  individuals 
were  given  the  right  to  bring  a  suit  in  their  own  names;  and  (3)  by 
the  law  of  the  United  States  and  Great  Britain,  international  law 
has  been  accepted  as  part  of  the  common  law,^  and  in  the  United 
States,  treaties  are  declared  to  be  the  supreme  law  of  the  land,  the 
rights  arising  out  of  which  an  alien  may  invoke  in  municipal  courts. 
Heilborn  *  regards  the  first  two  circumstances  as  exceptional  phe- 
nomena proving  the  general  rule,  and  the  third  he  explains  by  showing 

» Jellinek,  G.,  System,  2nd  ed.,  327;  Anzilotti  in  13  R.  G.  D.  I.  P.  (1906)  5,  17; 
Heilborn,  System,  72;  Triepel,  op.  cit.,  328  et  seq.;  Oppenheim,  I,  §  289.  Diena 
differs  from  this  view  and  is  supported  by  decisions  of  the  courts  of  Great  Britain 
and  the  U.  S.,  to  the  effect  that  when  municipal  law  is  silent,  the  individual  may 
invoke  a  well-established  rule  of  international  law  for  his  protection.  Taylor,  §  103; 
The  Paquete  Habana,  17.5  U.  S.  677. 

2  Heffter,  Das  europaische  Volkerrecht,  8th  ed.  by  Geffckeu,  Berlin,  1888,  §  14; 
Fiore,  P.,  Nouveau  dr.  int.  pub.  (Antoine's  ed.)  I,  §  680;  Martt,ns,  F.,  Traite,  Paris, 
1883,  §§  53,  84,  85;  Kaufmann,  W.,  Die  Rechtskraft  des  internationalen  Rechtes, 
Stuttgart,  1899,  3  et  seqf;  Bonfils-Fauchille,  Manuel  de  dr.  int.  pub.,  6th  ed.,  §  157. 
See  also  A.  H.  Snow  in  8  A.  J.  1.  L.  (1914)  201  et  seq.  Kaufmann  is  the  only  one  of 
these  who  is  altogether  clear.  Heffter  and  Martens  are  quite  equivocal.  Bluntschli, 
Dr.  int.  cod.,  5th  ed.  §§  22,  23  is  difficult  to  reconcile.    See  Benjamin,  op.  cit.  14-16. 

'  Taylor,  §  103;  Oppenheim,  I,  §§  21,  24,  and  authorities  cited.  See  a  recent  work 
byPiciotto,  1915.  See  also  the  Paquete  Habana,  175  U.  S.  677.  In  the  civil  law 
countries  generally,  the  judge  is  bound  by  the  municipal  law  of  his  country,  and 
the  alien  cannot  invoke  a  rule  of  international  law  as  the  basis  of  a  legal  right.  See 
Esteban  Gil  Borgas  in  3  Rev.  de  derecho  y  legislacion,  Caracas  (April,  1914),  145, 
and  Diena  in  16  R.  G.  D.  I.  P.  (1909)  57  et  seq.  who  beheves  judges  have  the  power 
to  apply  international  law. 

*  In  Handbuch  des  Volkerrechta,  Stuttgart,  1912,  I,  part  1,  p.  96.  See  also  Oppen- 
heim, I,  §  21. 


18  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

that  the  courts  must  by  decision  embody  the  international  rule  in 
municipal  law  before  individuals  may  derive  rights  from  it  and  that  in 
invoking  treaty  rights  the  individual  in  the  case  posited  invokes 
municipal  and  not  international  law. 

It  would  seem  that  the  theory  of  the  majority  is  correct,  namely, 
that  the  rules  of  international  law  are  binding  upon  and  create  rights 
and  liabilities  between  states  only.  These  rules  have  in  view  the 
conduct  of  states  toward  aliens,  by  imposing  upon  states  manifold 
duties  whose  object  is  to  assure  the  protection  and  well-being  of 
aliens.^  Individuals  indeed  are  the  beneficiaries  of  the  rights  and 
duties  which  international  law  ascribes  to  states.  The  state  fulfills 
these  duties  by  means  of  its  municipal  law,  and  under  this  law  aliens 
have  subjective  rights  which  they  may  invoke  in  municipal  courts. 
But  when  there  has  been  an  alleged  violation  of  international  law  with 
respect  to  a  particular  alien,  the  state  cannot  plead  its  own  municipal 
law  or  a  decision  of  its  own  courts  construing  a  treaty  obligation  as  a 
defense  against  an  international  reclamation  of  another  state.  Nor 
does  the  alleged  violation  of  international  law  give  rise  to  any  right 
of  the  individual  to  invoke  the  responsibility  of  the  state,  unless  the 
rule  violated  is  also  incorporated  in  the  state's  municipal  law.  The 
remedy,  then,  is  confined  to  that  permitted  by  municipal  law.  As  the 
rules  of  international  law  and  treaties  constitute  obligations  between 
states,^  their  violation  creates  international  responsibility,  not  to 
the  individual,  but  to  the  state  of  which  he  is  a  member.  This  state, 
in  demanding  redress,  does  not  represent  the  individual  who  has 
sustained  the  injury,  and  does  not  give  effect  to  his  right,  but  to  its 
own  right,^  the  right,  namely,  that  its  citizen  may  be  treated  by 
other  states  in  the  manner  prescribed  by  international  law.  This 
legal  relation  between  states,  however,  may  and  usually  does  have  as 
a  consequence  the  indemnification  of  the  individual  injured,  although 
he  has  no  legally  enforceable  right  either  to  the  protection  of  his  own 
state  or  to  the  payment  of  the  indenmity  when  received. 

'  Heilborn,  System,  64. 

2  Anzilotti  in  13  R.  G.  D.  I.  P.  (1900),  G,  17;  Frisch,  Hans  v.  Das  Fremdenrecht. 
Hcrlin,  1910,  p.  131. 

'  Heilborn,  System,  70;  Anzilotti,  in  13  R.  G.  D.  I.  P.,  C;  Oppenheim,  I, 
J  289. 


DUAL  AND   NO   NATIONALITY  19 

§  10.  Characteristics  of  Bond  of  Nationality. 

Four  principles  dominate  the  bond  of  nationality.  The  first  em- 
bodies the  idea  of  legal  attachment,  expressed  in  former  times  by 
membership  in  a  clan  or  tribe,  advancing  later  into  the  broader  bond 
of  membership  in  a  city,  state  and  nation.  This  quality  Stoerk  calls 
the  civitas  or  the  quality  of  belonging  to  some  nation,  as  every  vessel 
at  sea  is  recognized  as  belonging  to  some  organized  communitJ^^ 
The  second  principle  is  the  exdusiveness  of  nationality.  In  theory  and 
in  aim  public  law  ascribes  only  one  nationality  to  an  individual, 
though  differences  in  the  municipal  law  of  different  states  have 
occasionally  endowed  an  individual  with  plural  nationality.  The 
third  is  the  principle  of  mutability,  which  permits  the  individual  at  the 
present  day  to  change  his  nationahty;  and  the  fourth,  the  principle 
of  continuity,  by  which  the  nationahty  of  origin  is  retained  until  a 
new  one  is  acquired.  Emigration  without  naturahzation  in  another 
state  does  not  break  the  bond  of  nationality.  Such  emigration  may 
by  municipal  law  under  certain  conditions  involve  a  loss  of  diplomatic 
protection,  but  this  is  only  one  of  the  rights  incidental  to  citizenship. 

§  11.  Dual  and  No  Nationality. 

The  same  individual,  as  has  been  observed,  is  sometimes  claimed  as 
a  citizen  by  two  or  more  states,  due  to  differences  in  their  municipal 
legislation  as  to  when  citizenship  begins  and  ends.  The  concurrent 
claims  of  the  jus  soli  and  the  jus  sanguinis,  the  absolute  or  conditional 
refusal  of  some  states,  e.  g.,  Russia  and  Turkey,  to  permit  expatriation, 
followed  nevertheless  by  the  naturalization  of  their  emigrating  sub- 
jects by  other  states,  or  any  new  naturalization  before  the  bond  of 
allegiance  to  the  original  state  has  been  severed,  create  cases  of 
dual  nationality  which  have  given  rise  to  serious  conflicts.  Again, 
the  imposition  by  some  states  of  a  deprivation  of  nationality  as  a 
penalty  for  certain  acts,  or  a  predication  of  loss  of  nationality  upon 
mere  residence  abroad  for  a  certain  period,  brings  about  the  equally 
anomalous  situation  of  an  individual  without  nationahty  or  the 
heimatlos.-     By  international  agreements  and  municipal  law,   states 

'  Stoerk  in  2  R.  G.  D.  I.  P.  (1895),  277  el  seq. 

2  Weiss  in  13  Annuaire  of  the  Institute  of  Int.  Law,  174-176,  has  mentioned  eight 
cases  in  which  conflicts  in  municipal  law  have  most  frequently  caused  cases  of  dual 


20  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

have  within  the  past  forty  years  endeavored  to  remove  these  sources 
of  conflict,  or  at  least,  by  mutual  concessions,  to  agree  on  the  circum- 
stances under  which  protection  shall  be  accorded  and  permitted. 

§  12.  Citizens  in  International  and  in  Constitutional  Law. 

In  the  international  sense  the  citizens  of  a  state  are  those  individ- 
uals over  whom  the  state  is  admitted  by  the  international  community 
to  have  primary  authority  or  personal  sovereignty.  There  is,  however, 
a  difference  between  the  citizens  of  international  law  and  those  of 
constitutional  law.  Lea^dng  aside  the  broad  constitutional  principle 
that  the  state  may  impose  its  citizenship  on  all  those  within  its 
sovereignty,  there  are  classes  of  persons  who,  while  not  citizens  in 
constitutional  law,  are  nevertheless  subjects  of  the  state  or  nationals 
in  international  law.  So,  for  example,  the  negroes  before  the  Civil 
War,  the  American  Indians,  and  natives  of  the  unincorporated  insular 
possessions,  are  citizens  of  the  United  States  in  international  law, 
though  not  constitutionally  citizens.^  Nor  are  constitutional  dis- 
abilities attached  to  age  or  sex  of  any  international  concern. 

Again,  a  person  may  be  a  citizen  in  constitutional  law  without  being 
a  citizen  in  international  law.  This  case  occurs  in  federal  nations  like 
the  United  States,  for  example.  A  person  may  be  a  citizen  of  a  State 
without  being  a  citizen  of  the  United  States.  Confusion  arises  be- 
cause, whereas  the  status  of  citizenship  is  a  national  grant,  the 
enjoyment  of  many  of  its  rights  is  within  the  jurisdiction  of  the 
States,  and  from  the  possession  of  these  rights  the  term  "State 
citizenship"  has  arisen.  To  be  a  citizen  of  the  United  States,  birth 
or  naturalization  in  the  United  States  is  necessary;  to  be  a  citizen 
of  a  State,  usually  only  residence  is  required.  Nor  is  the  right  to  vote 
a  criterion.  This  right  is  not  granted  or  guaranteed  by  the  federal 
Constitution,   but  is   conferred   and  regulated  by  the  States.     This 

nationality.  See  also  Cockburn,  op.  cit..,  108,  186,  187.  Many  publicists  consider 
municipal  penalties  of  loss  of  nationality  as  wrong  in  principle,  as  they  increase  the 
number  of  persons  without  nationality. 

*  Wolfman,  Nathan,  Status  of  a  foreigner  who  has  declarcxl  his  intention  of  be- 
coming a  citizen  of  the  United  States,  in  41  American  Law  Rev.  (1907),  499; 
Coudcrt,  Frederic  R.,  Jr.,  Our  new  peoples:  citizens,  subjects,  nationals  or  aliens, 
3  Columbia  Law  Rev.  (1903),  13-32.    See  also  Cogordan,  op.  cit.,  §  2. 


RIGHTS   AND    DUTIES   OF   STATE   AND    CITIZEN   ABROAD  21 

right  is  in  some  states  even  granted  to  persons  not  citizens,  either  of 
the  State  or  of  the  United  states.'  In  the  British  Empire,  with  its 
scattered  dominions,  tlie  term  "British  citizenship"  has  received  a 
pecuUarly  local  meaning,  not  extended,  for  example,  to  the  natives 
of  India.-  In  our  international  use  of  the  term  citizenship  or  nation- 
ality we  are  not  concerned  with  variations  in  the  municipal  tests  or 
degrees  of  citizenship,  nor  need  we  be  detained  by  any  supposed 
difference  between  the  terms  "subject"  and  "citizen,"  the  former 
ipplying  generally  to  nationals  of  a  state  whose  government  is  a 
monarchy,  the  latter  to  those  where  there  is  no  kingship.  The  term 
"nationals"  is  perhaps  the  most  appropriate,  inasmuch  as  it  dis- 
regards differences  in  constitution  and  form  of  government. 

§  13.  Rights  and  Duties  of  State  and  Citizen  Abroad. 

As  has  been  observed,  the  mere  separation  of  the  individual  from 
his  home  soil  leaves  him  still  subject  to  the  law  of  his  ow^n  state  in 
so  far  as  this  has  been  made  applicable  to  him.  This  remains  so  until 
physically  and  legally  he  has  become  incorporated  as  a  citizen  of 
another  state.  The  continuity  of  the  bond  is  evidence  of  the  continua- 
tion of  the  reciprocal  relation  between  the  state  and  the  citizen.  The 
most  important  of  the  rights  and  duties  which  exist  between  the  state 
and  its  citizen  abroad  may  now  be  enumerated. 

First,  self-preservation  gives  the  state  the  necessary  right  of  calling 
upon  its  citizen  for  miUtary  duty,  for  which  purpose  the  state  ma}' 
recall  its  absent  citizen.^  The  state  of  residence  is  not,  however, 
obhged  to  faciUtate  his  return  to  fulfill  the  obligations  imposed  by  his 
national  law,  though  it  is  bound  not  to  prevent  his  performance  of 
these  duties.  The  machinery  provided  for  retaining  control  of  the 
citizen  abroad  and  for  assuring  him  the  enjoyment  of  certain  inter- 
national rights  is  the  consular  and  diplomatic  service,  which  is  gov- 
erned by  such  rules  of  national  municipal  law  as  the  territorial  state, 

1  Van  Dyne,  F.,  Citizenship  of  the  United  States,  Rochester,  1904,  p.  HI. 

^Sargant,  E.  B.,  British  citizenship,  in  "United  Empire"  (May,  1912),  366, 
373. 

'  Stoerk  in  Holtzendorff's  Handbuch,  II,  630  et  seq.;  Bluntschli,  Droit  interna- 
tional codifie  (Lardy's)  5th  ed.,  Paris,  1895,  §  375;  Martens,  F.,  op.  cit.,  442;  Bon- 
fils,  H.,  Manuel  de  droit  int.  public,  6th  ed.  (by  Fauchille),  §  433. 


22  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

by  comity  and  the  force  of  the  principle  of  the  protective  surveillance 
of  the  national  state  over  its  citizens,  has  permitted  it  to  apply. 

Again,  the  state  may  impose  certain  taxes  upon  the  citizen  abroad/ 
as  has  been  done  by  the  Federal  Income  Tax  Law  of  1913,  although 
international  practice  usually  ascribes  the  collection  of  personal  taxes 
to  the  state  of  residence.^  Questions  of  double  taxation  are  still  an 
important  source  of  international  difficulty.^ 

These  requirements  and  injunctions  of  national  law  are  binding 
between  the  state  and  its  citizen,  and  impose  duties  upon  him.  The 
extent  to  which  they  are  enforceable  and  their  effect  is  measured  by 
the  application  of  the  territorial  principle,  according  to  which,  except 
for  such  concessions  as  are  made  by  other  states,  national  law  loses 
its  coercive  force  at  the  frontiers  of  the  territorial  dominions  of  the 
state.  If  effect  is  given  by  other  states  to  these  provisions  of  national 
law  it  is  the  result  of  concession  in  derogation  of  local  territorial 
jurisdiction,  which  concessions  by  custom  and  comity  have  become  a 
definite  and  important  part  of  international  law.  Nevertheless,  the 
failure  by  a  citizen  abroad  to  obey  national  law  is  not  without  its 
consequences  in  the  home  state.  It  may  be  met  either  immediately 
by  a  loss  of  national  protection  and  sometimes  denationalization,  or 
else  with  penalties  inflicted  either  on  his  property  in  the  national 
state  or  upon  rights  which  he  may  have  retained  there,  or  on  his 
person  when  he  returns.'*  Similarly,  many  states  punish  their  cit- 
izens, on  return,  for  crimes  committed  abroad.  In  a  general  way, 
the   exercise   of   this    right    of   the    state   to    punish   its    delinquent 

^  Rivier,  Principes,  I,  271. 

^  Stoerk  in  Holtzendorff's  Handbuch,  II,  631;  Bluntschli,  op.  cit.,  §  376. 

'  Wittmann,  Erno,  Double  imposts,  in  24th  Report  of  the  International  Law  Asso- 
ciation (at  Portland),  London,  1908,  pp.  214-229;  Bar,  op.  cit.,  245  el  scq.;  Sal- 
violi,  G.,  Le  doppie  imposte  in  diritto  internazionale,  Napoli,  1914,  94  p. 

*  Germany,  by  the  law  of  July  22,  1913,  art.  27,  reserves  the  right  to  punish  with 
denationalization  the  failure  to  heed  the  summons  to  return.  Sec.  28  provides  the 
Bame  penalty  for  those  who,  having  entered  the  service  of  a  foreign  state  do  not, 
on  demand,  resign  their  office.  8  A.  J.  I.  L.  (1914)  479.  The  Hungarian  law  of 
Dec.  20,  1879  (Art.  50,  Annuaire  de  legislation  ^trangere,  1880,  p.  351)  makes  ? 
similar  provision.  See  also  French  civil  code.  Art.  17,  §  4,  as  amended  by  law  of 
June  26,  1889  and  Art.  17,  §  3.  See  also  Chretien,  Principes  de  droit  international 
public,  Paris,  1893,  p.  218. 


RIGHTS   AND   DUTIES   OF   STATE   AND   CITIZEN  ABROAr*  23 

citizen  depends  (1)  upon  the  intrinsic  importance  of  the  offense, — 
thus,  some  states,  as,  for  example.  Great  Britain  and  the  United  States, 
limit  to  such  punishment  the  important  crimes,  such  as  treason,  coun- 
terfeiting the  national  coinage,  etc.;  (2)  on  its  effect  upon  his  own 
state  and  its  citizens;  and  (3)  on  its  punishability  by  national  law  and 
by  the  lex  loci  actus.  If  the  penalty  has  already  been  paid  in  the 
place  where  the  crime  was  committed,  the  home  state  will  not  usually 
enforce  its  own  penalty,  and  this  is  always  the  case  where  the  crime 
is  against  local  law  alone.  ^  As  in  most  cases  where  the  individual 
is  thus  subject  to  the  laws  of  two  states,  it  is  by  mutual  agreement 
and  concession  of  the  respective  states  that  the  rights  and  obligations 
of  the  individual  are  controlled  and  regulated,  the  object  being  to 
permit  him  neither  to  escape  obUgations  nor  twice  to  be  subject  to 
them. 

The  control  of  the  national  state  is  again  evidenced  in  the  fact  that 
by  the  legislation  of  many  countries  the  acceptance  of  foreign  titles 
is  conditioned  upon  the  consent  of  the  national  sovereign.^  So,  com- 
pliance with  national  law  is  occasionally  necessary  to  the  marriage  of 
citizens  abroad.  National  consent  is  sometimes  a  prerequisite  to  the 
marriage  of  military  officers,  as  in  Austria,  Germany  and  France.' 
Those  countries  which  do  not  permit  divorce,  as,  e.  g.,  Italy  and  Brazil, 
decUne  to  give  legal  effect  to  a  divorce  of  their  nationals  in  a  state 
where  such  divorce  is  legal. ^ 

There  is  a  large  field  of  private  international  law  in  which  the  in- 
dividual's national  law  controls  his  legal  relations  abroad.  Thus,  his 
personal  status  and  his  capacity  to  enter  into  certain  contracts,  as, 
for  example,  marriage,  his  right  to  succession,  questions  of  guardian- 

'  An  exhaustive  comparative  study  of  the  subject  of  extraterritorial  crime,  with 
extracts  from  the  statutes  of  the  more  important  countries  and  quotations  from  the 
writings  of  publicists,  is  to  be  found  in  John  Bassett  Moore's  Report  on  extraterrito- 
rial crime  and  the  Cutting  case,  Washington,  1887, 129  p.  See  also  Chretien,  op.  cit., 
221. 

2  Stoerk  in  Holtzendorff's  Handbuch,  II,  631;  Chretien,  op.  cit.,  218;  Law  of  Costa 
Rica,  Dec.  20,  1886,  Art.  4,  Annuaire  de  legislation  6trangere,  1887,  p.  869. 

'  Renton,  A.  W.,  and  Phillimore,  G.  G.,  The  comparative  law  of  marriage  and 
divorce,  London,  1910,  pp.  253-254. 

■•  Buzzati,  G.  C,  Le  droit  international  priv§  d'apr^s  les  conventions  de  la  Haye. 
French  translation  by  Francis  Rey,  Paris,  1911;  Lomonaco,  op.  cit.,  166. 


24  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

ship  and  similar  matters  are  largely  controlled  by  his  national  law.^ 
This  personal  law  of  the  individual,  which  the  principle  of  territoriality 
has  recognized,  is  directly  connected  with  the  period  of  the  early 
Middle  Ages  when  the  personal  law  or  personal  statute  controlled  the 
entire  legal  status  of  the  individual. 

Before  jurisdiction  became  national  within  a  politically  and  geo- 
graphically defined  territory,  this  personal  law  was  usually  the  law  of 
the  domicil,  an  inheritance  from  the  Roman  law.-  The  legislation 
following  the  French  Revolution  (for  example,  Article  3  of  the  French 
Code  Napoleon)  first  gave  expression  to  the  principle  of  nationality 
as  controlling  the  status  and  capacity  of  persons.  This  principle  was 
followed  in  the  Austrian  Allgemeines  hurgerliches  Gesetzhuch  of  1811 
(Article  4),  though  the  capacity  of  foreigners  was  still  left  to  the  old 
rule  of  domicil.  The  principle  of  nationality  as  governing  status, 
capacity  and  the  family  relations  received  its  greatest  impetus,  how- 
ever, from  the  Italian  school,  of  which  Mancani  was  the  principal 
apostle,  and  after  adoption  in  the  civil  code  of  Italy,  Spain,  Germany 
and  to  some  extent  by  Switzerland,  it  has  been  recognized  by  almost 
all  the  countries  of  Europe  in  the  Hague  Conventions  on  private 
international  law,  resulting  from  the  conferences  of  1893,  1894,  1900 
and  1904.^  Certain  federal  states,  like  Switzerland,  still  lend  emphasis 
to  the  principle  of  domicil  as  the  criterion  of  status  and  capacity, 
as  do  the  United  States  and  Great  Britain.  Where  political  nationality 
is  distributed  throughout  the  world  among  various  systems  of  private 
law,  as  for  example,  British  nationality,  which  exists  in  Quebec, 
Scotland  and  South  Africa,  this  personal  law  must  refer  to  domicil 
within  the  political  nationality. 

The  state  in  t  urn  undertakes  toward  its  citizens  certain  duties  which 

'  Bluntschli,  op.  oil.,  §  379;  Rolin,  A.,  Principes  de  droit  international  priv6, 
Paris,  1897,  I,  114. 

2  Bar,  op.  cit.,  112;  see  also  Savigny,  op.  cit.,  88  el  seq. 

^  The  conventions  established  rules  concerning  the  adjustment  of  conflicts  of  law 
in  matters  of  marriage,  divorce  and  guardianship.  With  but  slight  qualifications, 
the  law  of  the  nationality  was  adopted  as  the  law  governing  these  legal  relations. 
See  Meili,  F.,  und  Mamelok,  A.,  Das  internationale  Privat-und  Zivilprozessrecht  auf 
Grund  der  Haager  Konventionen,  Zurich,  1911.  See  also  AVcstlake,  J.,  A  treatise 
on  private  international  law,  4th  ed.,  London,  1905,  27  et  seq. 


DIPLOMATIC    PROTECTION    A    LIMITATION   ON   JURISDICTION  25 

are  an  outgrowth  of  the  relation  itself,  but  which  in  their  exercise  are 
the  result  of  international  agreement  and  concession.  The  most  im- 
portant of  these  duties  of  the  state  is  the  obligation  to  receive  its  own 
citizens  expelled  by  other  states,  or  repatriation.^  This  obligation 
von  Bar  considers  the  true  kernel  of  nationality.-  Banishment  has 
now  been  practically  abandoned  as  a  penalty  against  citizens.  No 
state  can  legally  require  other  states  to  receive  its  banished  citizen, 
and  if  they  were  to  refuse  him  admission,  it  would  be  obliged  to  ac- 
cept him  again  as  a  resident  member  of  the  national  community. 

The  second  duty  which  is  imposed  upon  the  state  by  virtue  of  the 
relationship  is  the  protection  of  the  citizen  abroad.  The  security  of 
international  intercourse  depends  upon  the  fact,  recognized  by  the 
practice  of  nations,  that  states  assume  toward  their  citizens  the  ob- 
ligation, and  possess  as  against  other  state?  the  "i»^ht,  of  assuring  their 
citizen  abroad  the  exercise  and  enjoyment  of   :^e''tain  legal  rights. 

PROTECTION   ABROAT 

§  14.  Oiplomatlc  Protection  a  Limitation  on  Territorial  Jurisdiction. 

The  nond  af  isitizciisnip  implies  that  the  state  watches  over  its 
citizens  abroad,  and  reserves  the  right  to  interpose  actively  in  their 
behalf  in  an  appropriate  case.  Too  severe  an  assertion  of  territorial 
control  over  them  by  the  state  of  residence  will  be  met  by  the  emer- 
gence of  the  protective  right  of  the  national  state,  and  the  potential 
force  of  this  phenomenon  has  largely  shaped  the  rights  assumed  by 
states  over  resident  aliens. 

The  principles  of  territorial  jurisdiction  and  personal  sovereignty 
are  mutually  corrective  forces.  An  excessive  application  of  the  ter- 
ritorial principle  is  limited  by  the  custom  which  grants  foreign  states 
certain  rights  over  their  citizens  abroad,  sometimes  merely  the  applica- 
tion of  foreign  law  by  the  local  courts,  sometimes,  in  acknowledg- 
ment of  the  principle  of  protection,  a  certain  amount  of  jurisdiction. 
In  the  Orient  and  in  semi-civilized  states  this  often  involves  a  com- 

*  Martitz,  F.  von.,  Das  Recht  der  Staatsangehbrigkeit  im  internationalen  Verkehr 
in  Hirth's  Annalen  des  deutschen  Reichs,  1875,  p.  794;  Stoerk  in  2  R.  G.  D.  I.  P. 
(1895),  288;  also  in  Holtzendorff's  Handbuch,  II,  §  119;  Gareis,  op.  cit.,  163. 

»  Bar,  op.  cit.,  139. 


26  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

plete  surrender  of  local  jurisdiction  in  favor  of  the  foreign  state,  and  in 
states  conforming  more  closely  to  the  highest  type  of  civilized  govern- 
ment, it  consists  in  partial  derogations  from  territorial  jurisdiction 
in  special  classes  of  cases,  e.  g.,  consular  jurisdiction  in  certain  com- 
mercial disputes  and  over  national  merchant  vessels.^  Fundamentally, 
these  concessions  are  made  to  assure  individuals  the  most  appropriate 
regulative  agency  for  their  legal  relations. 

It  is  the  obUgation  of  every  state  to  regard  the  citizens  of  other 
states  as  the  subjects  of  legal  rights, ^  and  to  furnish  the  machinery 
for  enforcing  the  rights  granted  by  municipal  law. 

When  the  citizen  leaves  the  national  territory  he  enters  the  domain 
of  international  law.  By  residence  abroad  he  does  not  merely  carry 
with  him  certain  rights  and  duties  imposed  by  the  municipal  law  of  his 
own  state,  but  he  enters  into  a  new  sphere  of  mutual  rights  and  ob- 
ligations between  himself  as  a  resident  alien  and  the  state  of  his 
residence.  By  receiving  the  alien  upon  its  territory,  the  state  of  resi- 
dence admits  the  sovereignty  of  his  national  country  and  recognizes 
the  bond  which  attaches  him  to  it.  A  failure  on  his  part  to  comply 
with  his  newly  created  obligations  to  the  state  of  residence  is  met 
by  repression  and  punishment  in  the  local  courts.  On  the  other  hand, 
a  failure  of  the  territorial  state  to  fulfill  its  obUgations  toward  the 
alien  is  met  by  repression  on  the  part  of  his  home  state.  The  extent 
of  these  obligations  toward  the  resident  alien  has  been  measured  by 
international  law  and  practice,  though  the  very  nature  of  repressive 
action  has  permitted  the  element  of  physical  power  and  political 
expediency  at  times  to  obscure  and  even  obliterate  purely  legal  rights. 

Legally,  the  measure  of  the  obligation  of  the  state  of  residence  to 
resident  aliens  is  the  measure  of  the  national  state's  right.  The  extent 
of  the  failure  to  fulfill  the  obligation,  ordinarily  known  as  the  inter- 
national responsibility  of  the  state,  is  in  exact  proportion  to  the 
amount  of  diplomatic  pressure  or  protection  which  the  national  state 
is  authorized  to  interpose. 

States  are  legal  persons  and  the  direct  subjects  of  international  law. 
They  are  admitted  into  the  international  community  on  condition  that 

'  Hall,  W.  E.,  Foreign  powers  and  jurisdiction,  Oxford,  1894,  pp.  4-6. 
•  Heilborn,  op.  dt.,  75  et  seq. 


DIPLOMATIC    PROTECTION   A   LIMITATION   ON  JURISDICTION  27 

they  possess  certain  essential  characteristics,  such  as  a  defined  terri- 
tory, independence,  etc.  In  addition,  they  must  manifest  their  power 
to  exercise  jurisdiction  effectively  and,  as  will  be  seen  presently,  to 
assure  foreigners  within  it  of  a  minimum  of  rights.  This  minimum 
standard  below  which  a  state  cannot  fall  without  incurring  responsibility 
to  one  or  more  of  the  other  members  of  the  international  community 
has  been  shaped  and  established  by  the  advance  of  civilization  and 
the  necessities  of  modern  international  intercourse  on  the  part  of  in- 
dividuals. The  home  state  of  the  resident  alien  is  concerned  not  with 
the  legal  legitimacy  of  a  foreign  government,^  but  with  its  actual 
ability  to  fulfill  the  obhgations  which  this  international  standard 
imposes  upon  it.  The  resident  alien  does  not  derive  his  rights  directly 
from  international  law,  but  from  the  municipal  law  of  the  state  of 
residence,  though  international  law  imposes  upon  that  state  certain 
obligations  which  under  the  sanction  of  responsibility  to  the  other 
states  of  the  international  community,  it  is  compelled  to  fulfill.  When 
the  local  state  fails  to  fulfill  these  duties,  "when  it  is  incapable  of 
ruling,  or  rules  with  patent  injustice,"  the  right  of  diplomatic  protec- 
tion inures  to  those  states  whose  citizens  have  been  injured  by  the 
governmental  delinquency.^ 

International  law  recognizes  on  the  part  of  each  member  of  the 
family  of  nations  certain  norms  or  attributes  of  government  for  the 
purpose  of  assuring  the  rights  of  the  individual.  The  independence  of 
states,  with  the  right  of  administering  law  and  justice  uncontrolled  by 
other  states,  is  one  of  the  norms  by  which  this  end  is  attained.  In 
countries  which  habitually  maintain  effective  government,  the  pro- 
tective function  of  the  national  government  of  a  resident  alien  is 
usually  limited  to  calling  the  attention  of  the  local  government  to  the 
performance  of  its  international  duty.  The  right,  however,  is  always 
reserved,  and  in  the  case  of  less  stable  and  well-ordered  governments 
frequently  exercised,  of  taking  more  effective  measures  to  secure  to 

^  The  assassination  of  the  King  of  Servia  by  certain  nobles  and  of  President  Madero 
by  rebels  was  of  no  special  concern  for  international  law,  in  view  of  the  immediate 
establishment  of  a  government  having  the  power  to  fulfill  the  international  obliga- 
tions of  the  state. 

*  Hall,  W.  E.,  Foreign  powers  and  jurisdiction,  4;  Bluntschli,  op.  cit.,  §  380. 


28  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

their  citizens  abroad  a  measure  of  fair  treatment  conforming  to  the 
international  standard  of  justice.  While  the  right  of  every  state  to 
exercise  sovereignty  and  jurisdiction  within  its  territory  over  all 
persons  within  it  is  recognized,  foreign  nations  retain  over  their 
citizens  abroad  a  protective  surveillance  to  see  that  their  rights  as 
individuals  and  as  nationals  receive  the  just  measure  of  recognition 
established  by  the  principles  of  municipal  and  international  law.^ 
Non-interposition  is  the  rule  only  so  long  as  states  are  careful  to  ob- 
serve their  international  duties.  Diplomatic  protection,  therefore,  is  a 
complementary  or  reserved  right  invoked  only  when  the  state  of  resi- 
dence fails  to  conform  with  this  international  standard. 

States  normally  avoid  the  two  extremes  (1)  of  leaving  their  citizens 
entirely  unprotected  and  (2)  of  improperly  impairing  the  administra- 
tion of  justice  in  a  foreign  country  by  immediately  interposing  in  their 
behalf  before  local  remedies  have  been  exhausted.  When  interposition 
is  immediate,  it  is  justified  by  the  allegation  that  the  local  adminis- 
tration of  justice  was  not  up  to  the  international  standard  of  civilized 
justice  which  requires  forbearance  of  diplomatic  action. 

The  rules  of  international  law  in  this  matter  fall  with  particular 
severity  upon  those  countries  where  law  and  administration  frequently 
deviate  from  and  fall  below  this  standard;  for  the  fact  that  their  own 
citizens  can  be  compelled  to  accept  such  maladministration  is  not  a 
criterion  for  the  measure  of  treatment  which  the  aUen  can  demand, 
and  international  practice  seems  to  have  denied  these  countries  the 
right  to  avail  themselves  of  the  usual  defense  that  the  alien  is  given 
the  benefit  of  the  same  laws,  the  same  administration,  and  the  same 
protection  as  the  national. 

The  broad  principle  of  international  law  that  when  an  individual 
establishes  himself  in  a  foreign  state  he  renders  himself  subject  to  the 
territorial  jurisdiction  of  that  state  and  must  normally  accept  the 
institutions  which  the  inhabitants  of  the  state  find  suitable  to  them- 
selves, must  be  viewed  in  its  relation  to  the  complementary  principle 
that  the  individual  in  question  still  owes  allegiance  to  his  own  state 

'  Addresa  before  the  American  Society  of  International  Law,  April  29,  1910,  Pro- 
ceedings, 40;  Heilborn,  op.  cit.,  G4  et  seq.;  Fillet,  A.,  Rccherchos  sur  les  droits  fonda- 
incntaux  dcB  etats,  Paris,  1899,  p.  19  el  seq.,  particularly  at  p.  28. 


RIGHT   AND    DUTY    OF    PROTECTION  29 

and  will  be  protected  by  that  state  when  his  rights,  as  measured  not 
necessarily  and  finally  by  the  local,  but  by  the  international,  standard 
are  invaded. 

§  15.  Right  and  Duty  of  Protection. 

Many  writers  consider  diplomatic  protection  a  duty  of  the  state,  ^ 
as  well  as  a  right.  If  it  is  a  duty  internationally,  it  is  only  a  moral 
and  not  a  legal  duty,  for  there  is  no  means  of  enforcing  its  fulfillment. 
Inasmuch  as  the  state  may  determine  in  its  discretion  whether  the 
injury  to  the  citizen  is  sufficiently  serious  to  warrant  or  whether  polit- 
ical expediency  justifies  the  exercise  of  the  protective  forces  of  the 
collectivity  in  his  behalf,^ — for  the  interests  of  the  majority  cannot  be 
sacrificed — it  is  clear  that  by  international  law  there  is  no  legal  duty 
incumbent  upon  the  state  to  extend  diplomatic  protection.^  Whether 
such  a  duty  exists  toward  the  citizen  is  a  matter  of  municipal  law 
of  his  own  country,'^  the  general  rule  being  that  even  under  municipal 
law  the  state  is  under  no  legal  duty  to  extend  diplomatic  pro- 
tection.^ 

The  state  has,  however,  in  international  law,  a  right  as  against  other 
states  to  protect  its  citizen  abroad.  This  international  right  is  uni- 
versally admitted,  and  attempts  to  limit  it  by  the  municipal  legisla- 
tion of  defendant  states  have  not  been  successful.®  The  individual 
is  also  often  said  to  have  a  right  to  the  protection  of  his  government.^ 
This  is,  however,  a  moral  rather  than  a  legal  right,  for  it  is  unenforce- 

1  Martens,  Traite,  444  and  as  arbitrator  in  Costa  Rica  Packet  (Gt.  Brit.)  o. 
Netherlands,  May  16,  1895,  Moore's  Arb.  4952.  Lomonaco,  op.  cit.,  212,  calls 
it  "always  a  sacred  duty."  Grotius,  II,  ch.  XXV,  §§  1  and  2;  Vattel,  I,  ch.  II,  §§  13- 
16;  Fiore,  Dir.  int.  codificato,  5th  ed.,  §  531  note;  Pradier-F'odere,  §  402. 

2  Infra,  §  143. 

*  Oppenheim,  I,  §  319;  Heilborn,  System,  70. 

*  Diena,  Dir.  int.  pubblico,  Napoli,  1908,  p.  258;  Heilborn,  System,  70.  Mr. 
Frelinghuysen,  Sec'y  of  State,  to  Mr.  Soteldo,  .A.pril  4,  1884,  For.  Rel.  1884,  601. 

*  Certain  German  writers,  basing  their  contention  upon  art.  3,  §  6  of  the  Consti- 
tution of  the  German  Empire,  which  provides:  "Against  foreign  states  all  Germans 
equally  have  the  right  to  demand  the  protection  of  the  Empire,"  assert  that  there 
is  a  municipal  duty  to  protect.  Seydel,  Bayerisches  Staatsrecht,  I,  p.  300,  note  43; 
Grabowsky  in  12  Verwaltungsarchiv  (1904),  232  et  seq. 

« Infra,  §  390  el  seq. 
'  Infra,  §  138. 


30  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

able  by  legal  methods.^  Even  under  the  German  constitution,  which 
expressly  accords  German  subjects  the  right  to  protection,  no  legal 
remedy  or  means  of  enforcing  the  right  has  been  granted.^ 

THE   PROTECTIVE  FUNCTION 

§  16.  Political  Philosophy.    Function  of  the  State. 

In  arriving  at  the  basis  for  the  external  activity  of  the  state  in 
protecting  citizens  abroad,  we  are  led  into  the  field  of  the  true  function 
of  the  state.  Being  concerned  primarily  with  international  law,  or  the 
material  and  external  sides  of  state  activity,  we  can  avoid  all  abstract 
philosophy,  with  the  attempt  to  bring  the  meaning  of  the  term  "state" 
into  harmony  with  a  general  theory  of  the  universe.^ 

From  the  beginning  of  civilization,  the  relation  between  the  state 
and  the  individual  and  the  proper  sphere  of  the  activity  of  each  have 
been  discussed  by  political  philosophers.  Under  the  ancient  theory  of 
the  state,  especially  among  the  Greeks,  the  state  was  regarded  as  the 
ultimate  aim  of  human  life,  an  end  in  itself."*  Individuals  appeared 
only  as  parts  of  the  state;  their  rights  and  welfare  were  recognized 
only  to  the  extent  that  it  was  serviceable  to  the  state.  By  the  time 
of  the  Romans,  with  its  absence  of  political  freedom  but  strong  pro- 
tection for  private  rights,  a  more  just  sense  of  the  relation  between 
state  and  individual  obtained,  at  least  so  far  as  the  sphere  of  law  is 
concerned.  The  Kantian  theory  of  the  Rechtstaat  considered  the  sole 
duty  of  the  state  the  maintenance  of  the  legal  security  of  each  in- 
dividual. This  attempt  to  narrow  the  sphere  of  governmental  activity 
was  adopted  by  the  orthodox  political  economy  which  reduced  the 
function  of  the  state  to  the  minimum  of  maintaining  security.^     A 

^  I.e.,  the  individual  has  no  legal  claim  to  protection.    Rivier,  Principes,  I,  272. 

2  Seydel  and  Grabowsky,  op.  cit.,  consider  it  a  subjective  right,  i.  e.,  that  the  in- 
dividual has  a  legal  claim  to  protection.  Jellinek  contests  this  view,  asserting  that 
the  right  to  protection  is  a  reflex  of  an  objective  right,  i.  e.,  the  individual  has  no 
formal  legal  claim  to  it.  Jellinek,  System,  2nd  ed.,  1905,  pp.  119-120.  Laband 
states,  rather  equivocally,  that  protection  by  the  state  is  not  a  favor  or  a  gratuity, 
but  that  the  individual's  right  is  recognized.  Deutsches  Staatsrecht,  I,  139,  cited 
by  Jellinek,  119. 

'  McKechnie,  S.  W.,  The  state  and  the  individual,  Glasgow,  1896,  p.  52. 

*  Bluntschli,  J.  K.,  The  theory  of  the  state,  Oxford,  1898,  p.  305. 

•  Duguit,  L.,  Etudes  de  droit  public.    1.  L'etat,  le  droit  objectif  et  la  loi  positive, 


POLITICAL   PHILOSOPHY.      FUNCTION   OF  THE   STATE  31 

more  modern  theory,  entirely  individualistic  and  utilitarian,  supported 
strongly  by  Macaulay,  Bentham  and  John  Stuart  Mill,  regarded  the 
state  as  a  means  only  to  insure  and  increase  the  sum  of  private  hap- 
piness.^ 

The  one-sidedness  of  each  of  these  views  has  become  more  evident 
with  the  growth  of  social  legislation  during  the  past  generation.  The 
state  is  not  merely  an  end  in  itself,  nor  only  a  means  to  secure  in- 
dividual welfare.  Just  as  the  nation  is  something  more  than  a  sum 
of  the  individuals  belonging  to  it,  so  the  national  welfare  is  more  than 
the  sum  of  individual  welfare.  National  welfare  and  individual  wel- 
fare are  indeed  intimately  bound  together.  In  an  impairment  of 
individual  rights,  the  state,  the  social  solidarity,  is  affected ;  ^  yet 
where,  in  a  particular  case,  the  redress  of  the  individual  wrong  would 
involve  too  great  a  social  cost,  it  may  be  overlooked,  and  the  measure- 
ment of  the  balance  of  advantages  is  in  the  discretion  of  the  govern- 
ment. 

The  assurance  of  the  welfare  of  individuals,  therefore,  is  a  primary 
function  of  the  state,  accomplished  internally  by  the  agency  of  munic- 
ipal public  law,  and  externally  through  the  instrumentalities  of  in- 
ternational law  and  diplomacy.  The  establishment  of  the  machinery 
to  insure  this  object  constitutes  an  essential  function  of  state  activity 
— within,  protecting  every  member  of  society  from  injustice  or  oppres- 
sion by  every  other  member;  without,  protecting  its  citizens  from 
\'iolence  and  oppression  by  other  states.  Authorities  differ  in  giving 
expression  to  this  function  of  the  state,  but  modern  publicists  agree 
that  it  finds  its  basis  in  the  nature  of  the  state  and  in  the  doctrine  of 
Locke  that  ''the  end  of  government  is  the  good  of  mankind."  ^ 

Paris,  1901,  p.  288.  See  the  theories  of  Kant  and  Humboldt  as  discussed  in  Blunt- 
echli,  op.  cit.,  68. 

1  McKechnie,  op.  cit.,  77;  Ritchie,  op.  cit.,  87. 

2  Duguit,  op.  cit.,  290. 

3  McKechnie,  op.  cit.,  74;  Bluntschli,  op.  cit.,  319  et  seq.  For  an  account  of  the 
contributions  of  a  long  line  of  publicists  to  political  theory  and  philosophy,  especially 
as  involved  in  the  relation  of  the  state  to  the  individual,  and  the  struggle  between 
authority  and  liberty,  see  the  works  of  McKechnie,  BluntschH,  and  Duguit  cited 
above,  and  Yeaman,  G.  H.,  The  study  of  government,  Boston,  1871,  and  Leroy- 
Beaulieu,  P.,  The  modern  state  in  relation  to  society  and  the  individual,  London, 
1891. 


32  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

International  lawyers,  unwilling  to  indulge  in  philosophical  specula- 
tion as  to  the  relation  between  the  state  and  the  individual,  assert 
that  the  final  mission  of  the  state  and  the  aim  of  international  or- 
ganization culminates  in  the  guaranty  of  the  collective  security  of  the 
nation  and  the  personal  security  of  the  individual  and  of  his  rights, 
and  the  promotion  of  social  and  individual  welfare.^  Diplomatic 
protection,  therefore,  as  a  governmental  function  to  achieve  security 
and  justice,  results  from  the  very  nature  of  the  state. ^  It  is  entirely 
consistent  with  the  principle  of  independence,  when  it  is  recalled  that 
the  latter,  as  an  attribute  of  states,  is  only  recognized  by  international 
law  on  the  theory  that  it  is  the  best  means  of  accomplishing  state 
functions.  Its  basis  being  practical,  international  law  permits  it  to 
be  set  aside,  when  it  is  misapplied,  by  the  diplomatic  interposition  of 
those  states  whose  interests,  through  their  citizens,  have  been  prej- 
udiced by  the  delinquency.  Diplomatic  protection  thus  conforms 
with  the  aim  of  international  organization — the  advancement  and 
perfection  of  those  rights  which  the  modern  development  of  inter- 
national law,  by  custom  and  treaty,  has  recognized  as  inherent  in  the 
individual. 

'  See,  e.  g.,  Martens,  op.  cit.,  §  85;  Holtzendorff's  Handbuch,  I,  §  15;  and  Huber, 
Beitrage  zur  Kenntnis  der  soziologischen  Grundlagen  des  Volkerrechta  u.  Staat- 
engesellschaft  in  4  Jahrbuch  des  offentlichen  Rechts  (1910),  56-134;  Vattel,  Chitty- 
Ingraham  ed.,  Phila.,  1855,  Prelimin.  §  22;  Bk.  I,  ch.  II,  §§  13-16;  see  also  A.  H.  Snow, 
"The  American  philosophy  of  government",  in  8  A.  J.  I.  L.  (1914),  191,  200  and  Hob- 
house,  Leonard  T.,  Social  evohition  and  political  theory,  New  York,  1911,  Chap.  IX; 
Wilson,  Roland  K.,  The  province  of  the  state,  London,  1911,  Chaps.  I  and  II. 

''Pillet,  A.,  Le  droit  international  public,  ses  elements  constitutifs,  domaine  et  objet, 
1  R.  G.  D.  I.  P.  (1894),  5. 


CHAPTER  II 

THE  ALIEN 

§  17.  Historical  Development  of  Legal  Position  of  Alien 

The  legal  position  of  the  aUen  has  in  the  progress  of  time  advanced 
from  that  of  complete  outlawry,  in  the  days  of  early  Rome  and  the 
Germanic  tribes,  to  that  of  practical  assimilation  with  nationals,  at  the 
present  time.  In  the  Twelve  Tables  of  Rome,  the  alien  and  enemy 
were  classed  together,  the  word  hostis  being  used  interchangeably  to 
designate  both.  Only  the  Roman  citizen  had  rights  recognized  in 
law.  When  Rome  became  a  conquering  and  commercial  nation,  cer- 
tain classes  of  foreigners  were  admitted  into  friendly  relations  with  that 
government.  By  special  treaty,  or  through  hospitality,  or  the  neces- 
sities of  commerce,  these  aliens  were  accorded  the  benefits  of  the  so- 
called  jus  gentium,  or  the  law  common  to  all  mankind,  for  the  jus 
civile  was  reserved  exclusively  for  Roman  citizens.  The  barbarians, 
or  those  with  whom  the  Empire  had  no  friendly  relations,  had  no  rights 
at  all.^  The  Prcetor  Peregrinus^  first  appointed  in  242  B.  C.  was  the 
special  judge  of  the  legal  relations  of  ahens,  either  among  themselves 
or  with  Romans,  and  he  applied  the  jus  gentium. 

The  Germanic  tribes,  in  the  early  period,  were  hardly  more  hospitable 
to  the  alien  than  were  the  Twelve  Tables  of  the  Romans.  Their 
later  wanderings,  however,  brought  them  into  constant  relations  with 
foreigners,  and  while  rights  of  foreigners  were  not  recognized,  the  prac- 
tice of  hospitahty  ameUorated  the  ahen's  harsh  position  of  outlawry. 

'  Bernheim,  A.  C,  The  history  of  the  law  of  aliens,  New  York,  1885,  p.  7  et  seq. 
For  the  history  of  the  law  of  aliens  see  also  the  works  of  Frisch,  Hans  von,  Daa 
Fremdenrecht,  Berlin,  1910,  pp.  5-22;  Demangeat,  Charles,  Histoire  de  la  condi- 
tion civile  des  Strangers  en  France  dans  I'ancien  et  dans  le  nouveau  droit,  Paris, 
1844;  Sapey,  C.  A.,  Les  Strangers  en  France  sous  I'ancien  et  le  nouveau  droit,  Paris, 
1843;  Weiss,  A.,  Traite  de  droit  international  prive,  2nd  ed.,  Paris,  1908,  v.  2,  chap.  1; 
Pierantoni,  A.,  Trattato  di  diritto  internazionale,  Rome,  1881,  v.  1.  The  etymology 
of  the  words  used  to  describe  aUens  is  discussed  in  Bernheim,  20-21. 

33 


34  THE   DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

In  the  feudal  period,  when  the  principles  of  unchallenged  residence 
of  an  alien  for  a  certain  period  (generally  a  year  and  a  day),  and 
voluntary  subjection  to  the  protecting  patronage,  first  of  a  member 
of  the  tribe  and  later  of  the  feudal  lord,  had  become  recognized  in- 
stitutions, the  disabilities  of  the  alien  became  more  clearly  defined. 
The  disabilities  and  restrictions  differed  in  degree  in  different  baronies, 
although  based  on  similar  principles.  In  the  restriction  of  personal 
liberty,  the  ''jus  wildfangiatus,'^  the  exactions  ranged  from  the  im- 
position of  complete  serfdom,  or  a  prohibition  to  leave  the  domain  or 
to  marry  without  the  lord's  consent,  to  almost  complete  personal 
freedom,  subject  to  payment  of  taxes  and  fines. ^  The  principle  of  the 
so-called  droit  d'aubaine  (literally  translated,  "right  of  the  foreigner") 
was  in  force  throughout  the  feudal  period.  Properly  speaking,  this 
involved  the  right  of  the  lord  or  fiscus  to  take  the  estate  of  the  for- 
eigner at  his  death,  and  in  application  consisted  of  the  disability  of  the 
foreigner  to  take  by  succession  or  to  become  a  testator,  either  uncon- 
ditionally, or  subject  to  the  payment  of  certain  sums  to  the  lord.^  Po- 
litical rights  there  were  none.  The  principal  difference  between  the 
person  who  was  born  in  the  fief  or  race  and  the  stranger  who  settled 
there  was  in  the  immunity  of  the  former  from  the  droit  d'aubaine. 
Until  the  time  when  political  rights  were  conceded,  the  essential  differ- 
ence between  nationality  and  domicil  was  slight.  As  has  been  ob- 
served, nationality,  as  the  bond  through  which  the  citizen  is  attached 
to  his  state,  securing  through  his  state  the  recognition  and  the  ulti- 
mate enforcement  of  rights  abroad,  did  not  clearly  emerge  as  a  legal 
relation  with  definite  individual  rights  until  the  period  of  the  French 
revolution. 

From  the  fifteenth  to  the  nineteenth  centuries,  many  of  the  feudal 
disabilities  of  aliens  were  retained  in  principle  though  reduced  in 
severity  of  application.  It  will  not  be  feasible  to  enter  into  any  de- 
tailed account  of  the  degrees  of  alienage,  nor  of  the  various  disabilities 
to  which  aliens  were  subjected.^  The  most  important  were  the  droit 
d'aubaine  and  the  somewhat  less  onerous  jus  detractus  or  droit  de  de- 

'  Bernheim,  op.  cil.,  35,  44. 

'  Bernheim,  op.  cit.,  37,  46;  Frisch,  op.  cit.,  22  et  seq. 

*  See  Bernheim,  op.  cit.,  41,  49. 


HISTORICAL  DEVELOPMENT   OF   LEGAL   POSITION   OF   ALIEN  35 

traction,  a  reduction  or  tax  on  property  first  applied  in  Germany  on 
property  which  a  German  resident  of  one  province  acquired  in  and 
removed  from  another  province.  It  apphed  at  first  not  to  all  foreign- 
ers, but  only  to  persons  belonging  to  different  provinces  of  the  same 
nation.  By  the  eighteenth  century,  it  had  become  a  widespread  in- 
stitution in  Europe,  and  applied  to  all  foreigners.  The  alien,  more- 
over, was  incapable  of  taking  ab  intestato,  nor  could  he  become  a 
testator.  He  was  also  subjected  to  various  discriminations  in  the 
matter  of  civil  and  criminal  procedure. 

In  England,  the  feudal  period  was  of  briefer  duration  than  on  the 
Continent.  The  droit  d^auhaine  did  not  ripen  into  a  legal  institution, 
nor  was  the  alien  protected  by  the  sovereign.^  Statutes  passed  from 
time  to  time  removed  the  more  onerous  of  the  disabilities  of  the 
alien.  Merchant  aliens  who  were  alwaj^s  favored  by  English  law  re- 
ceived by  Ucense  a  limited  right  to  reside  and  trade  in  England,  sub- 
ject to  payments  of  various  kinds.^  In  the  course  of  time  the  privi- 
leges of  alien  merchants  were  enlarged  and  extended  to  other  aliens 
as  well.  Curiously,  however,  the  feudal  notions  of  real  property,  the 
ownership  of  which  involved  an  oath  of  allegiance,  which  of  course 
could  not  be  taken  by  an  alien,  prevailed  in  England  up  to  1870,  when 
by  the  act  of  33  Vict.  c.  14,  aliens  were  first  rendered  capable  of  taking 
title  in  fee  to  real  property.^ 

With  the  growth  and  necessities  of  commerce  and  the  more  fre- 
quent intercourse  with  aliens,  combined  with  the  enlightened  views  of 
individual  rights  which  the  French  Revolution  brought  in  its  train, 
the  more  onerous  of  the  disabilities  of  aliens,  principally  the  droit 
d'avbaine  and  the  droit  de  detraction,  were  gradually  abolished  by 
treaty  and  statute,  so  that  at  the  present  time,  in  his  private  relations, 
the  legal  position  of  the  alien  is  practically  the  same  as  that  of  the 

^  Bernheim,  op.  cit.,  51  et  seq.;  Hansard,  Geo.,  Treatise  on  the  law  relating  to 
aliens  and  denization  and  naturalization,  London,  1844;  La  Baron,  F.  A.,  Code 
des  Strangers,  London,  1849;  Henriques,  H.  S.  Q.,  The  law  of  aliens  and  naturaliza- 
tion, London,  1906,  1  et  seq. 

2  Walford,  C,  A  review  of  the  early  laws  regulating  the  privileges  of  foreign  mer- 
chants in  9th  Annual  Report  (1881)  of  the  Asso.  for  the  Reform  and  Codification 
of  the  Law  of  Nations,  198-224. 

'  Bernheim,  op.  cit.,  124  et  seq.;  Henriques,  op.  cit.,  3-6. 


36  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

national.  Minor  disabilities  of  various  kinds  have  in  different  places 
survived,  as,  for  example,  the  prohibitions  to  hold  real  property,  or 
to  convey  an  indefeasible  title  by  will,  which  still  exist  in  various 
states  of  the  United  States;  certain  restrictions  as  to  the  admission  of 
undesirable  classes  due  to  social  and  economic  reasons;  and  various 
procedural  discriminations  intended  as  a  protection  to  the  national, 
as  the  security  for  costs  {cautio  judicatum  solvi)  required  of  the  alien 
plaintiff.^  These  disabilities  differ  in  detail  from  country  to  country. 
They  will  be  considered  presently  in  the  discussion  of  the  position 
of  the  aUen  in  international  law. 

§  18.  Relation  of  Law  of  Aliens  to  Different  Branches  of  Law. 

The  law  of  aliens  enters  the  domain  both  of  pubhc  and  private 
international  law.  The  latter  records  the  rights  recognized  and  denied 
by  positive  municipal  law;  the  former  controls  and  criticizes  the  munic- 
ipal grant  or  refusal  of  these  rights.  The  responsibihty  of  the  state 
toward  individuals,  both  nationals  and  aliens,  is  in  first  instance  a 
matter  of  municipal  law.  To  estabhsh  the  extent  of  this  responsibihty, 
or  the  state's  failure  in  a  given  case  to  fulfill  its  international  duty, 
the  legal  position  of  the  alien  in  municipal  law  must  first  be  deter- 
mined. 

§  19.  Position  of  Alien  in  Municipal  Law. 

The  aUen  in  law  occupies  a  position  between  two  extremes — the 
one  a  barbaric  exclusion  of  all  aliens,  the  other,  a  complete  equality 
of  nationals  and  aliens.  The  first  extreme,  complete  exclusion,  is  no 
longer  compatible  with  the  existence  of  the  state  as  a  member  of  the 
society  of  nations.  Continental  writers  base  the  custom  of  international 
intercourse  on  the  so-called  right  of  each  state  to  enter  into  commercial 
intercourse  with  the  other  states  of  the  international  community. 
Anglo-American  writers,  on  the  other  hand,  find  no  such  right  to  exist 
apart  from  treaty.^    A  few  continental  publicists  admit  that  the  duty 

'  Beale,  Jos.  H.,  The  jurisdiction  of  courts  over  foreigners  in  26  Harvard  Law 
Jlcv.  (Jan.,  1913),  193,  190. 

*  Westlake,  I  (2nd  ed.),  217;  Oppenheim,  I  (2nd  ed.),  199;  Woolsey,  Introduction 
(1872),  §25. 


POSITION    OF   ALIEN    IN    MUNICIPAL    LAW  37 

of  the  state  to  enter  into  commercial  relations  is  not  absolute,  and 
agree  that  a  state  may  impose  prohibitive  customs  tariffs  or  prevent 
export  by  a  burdensome  tax,  e.  g.,  the  prohibitive  tax  on  occasion 
assessed  on  the  export  of  Brazilian  coffee.  As  a  practical  matter,  it 
is  within  the  sovereign  power  of  a  state  to  isolate  itself  (as  was  done 
within  the  last  century  by  China,  Japan,  Paraguay  and  Argentine), 
though  this  isolation  may  be  inconsistent  with  membership  in  the 
family  of  nations.^  Practically  all  of  the  civiUzed  states  have  now  within 
definite  limits  granted  a  right  of  residence  and  travel  to  unobjection- 
able foreigners  and  accorded  them  a  wide  range  of  incidental  rights. 
The  universahty  of  the  right  of  sojourn  granted  to  foreigners  affords 
some  justification  for  the  continental  theory  that  there  is  a  right  of 
international  intercourse  which  these  treaties  merely  confirm,  define 
and  regulate.  On  the  other  hand,  the  recognized  inherent  power  of  a 
state  to  exclude  foreigners,  which,  however,  is  now  exercised  only 
against  certain  classes  of  undesirable  aliens,  lends  direct  support  of 
the  Anglo-American  view  that  apart  from  treaty  and  concession  there 
is  no  right  of  international  intercourse — notwithstanding  the  fact  that 
without  such  intercourse  international  existence  would  be  impossible.- 
At  the  present  day  the  right  of  admission  and  sojourn  on  the  part 
of  unobjectionable  ahens  is  almost  universally  recognized.  QuaUfi- 
cations  of  the  right,  which  are  to  be  found  in  the  possibilities  of 
exclusion,  expulsion  and  the  fixing  of  conditions  of  sojourn  by  the 
state,  must  in  practice  be  based  upon  reasonable  grounds. 

The  legal  position  of  aUens  is  fixed  by  municipal  law,  but  international 
law  and  the  obhgations  of  the  state  toward  the  other  states  of  the  inter- 
national community,  have  imposed  certain  restrictions  upon  the  free- 
dom of  the  legislator  and  territorial  sovereign.^  Another  effective 
agency  of  control — aside  from  extraterritoriaUty — has  been  the  fact 
that  the  measure  of  a  nation's  right  to  require  a  certain  standard  of 
treatment  for  its  subjects  abroad  constitutes  its  own  standard  for  the 
treatment  of  aliens.    The  present  inquiry,  therefore,  is  directed  toward 

^  Despagnet,  F.,  Cours  de  droit  int.  public,  4th  ed.,  236,  and  authorities  there  cited. 
^  Charles  Earl  in  Proceedings  of  the  Amer.  Society  of  Int.  Law,  1911,  p.  82. 
'  Despagnet,  F.,  op.  oil.,  §  334;  Rolin,  A.,  Prmcipes  du  droit  int.  prive,  I,  Introduc- 
tion. 


'<^ 


4 1 14 


38  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

establishing  the  minimum  of  rights  which  the  state  must  accord  the 
alien  and  the  maximum  power  of  control  over  him — a  minimum  below 
which  it  cannot  descend  and  a  practical  maximum  which  it  cannot 
transcend  without  violating  the  international  standard  of  right  of 
the  alien  and  duty  of  the  state,  and  incurring  responsibility  to  his 
national  government. 

§  20.  Sources  of  the  Law  of  Aliens. 

Before  undertaking  this  examination  it  will  first  be  desirable  to  ascer- 
tain the  sources  of  the  law  of  aliens.  Treaties  are  the  first  source — 
usually  called  in  Europe  treaties  of  establishment  or  commercial  treaties, 
and  in  the  United  States  treaties  of  commerce  and  navigation.  The 
questions  dealt  with  in  these  treaties,  which  form  part  of  the  municipal 
law  of  states,  differ  with  the  degree  of  culture  and  civilization  of  the 
contracting  parties.    The  higher  a  state  in  culture,  the  more  special  the 

\        topics  mentioned  in  the  treaties,  for  the  general  principles  governing 
y     the  treatment  of  aliens,  e.  g.,  protection  of  life,  liberty  and  property, 

'  '  are  recognized  by  all  civilized  states.  These  principles  are  either  em- 
bodied in  the  constitutions  or  are  considered  so  fundamental  that  no 
express  declaration  or  guaranty  is  required.  In  matters  of  private  law 
the  treaties  contain  but  few  provisions.  The  rule  is  generally  recognized 
that  the  aUen  and  the  national  are  practically  assimilated.  In  treaties 
between  states  of  a  different  standard  of  culture,  or  fundamentally  dif- 
ferent in  morals  or  religion,  there  is  usually  a  detailed  expression  of 
every  right  of  the  alien,  very  little  being  taken  for  granted.  Thus  the 
treaties  with  the  Balkan  states  are  more  detailed  in  their  specification 
of  treatment  than  those  among  the  larger  European  states.  ^ 

The  second  source  of  law  governing  aliens  is  municipal  legislation, 
which  may  be  divided  into  two  categories:  first,  general  legislation, 
which  affects  national  and  alien  alike,  or  such  legislation  from  the  force 
of  which  the  alien  is  not  expressly  excluded,  and  secondly,  special 
statutes  concerning  aliens,  which  are  found  in  a  great  many  countries 
and  particularly  in  the  countries  of  Latin  America.  These  statutes 
have  no  application  to  the  nationals  of  the  state.  Among  these  special 
statutes  are  the  laws  governing  exclusion,  expulsion  and  extradition^ 
'  Frisch,  op.  cil.,  92  et  seq. 


METHOD    OF   ESTABLISHING    MINIMUM  39 

which  usually  prescribe  limits  to  and  define  the  exercise  of  the  right 
which  the  state  by  general  international  law  possesses.  ^ 

MINIMUM    OF   RIGHTS    DUE   TO    ALIENS 

§  21.  Method  of  Establishing  Minimum. 

The  establishment  of  the  limit  of  rights  which  the  state  must  grant 
the  alien  is  the  result  of  the  operation  of  custom  and  treaty,  and  is 
supported  by  the  right  of  protection  of  the  alien's  national  state.  This 
limit  has  been  fixed  along  certain  broad  Unes  by  treaties  and  inter- 
national practice.  It  has  secured  to  the  alien  a  certain  minimum  of 
rights  necessary  to  the  enjoyment  of  life,  liberty  and  property,  and 
has  so  controlled  the  arbitrary  action  of  the  state.  Thus,  for  example, 
it  prevents  the  territorial  courts  from  declining  to  take  jurisdiction 
of  litigation  between  aliens,  or  the  confiscation  of  the  property  of  an 
aUen  who  by  war  has  become  an  alien  enemy,  or  the  forbidding  of 
the  aUen's  right  of  succession  to  properfy.^  Nor  can  a  state  deprive 
the  alien  of  the  right  to  appeal  to  the  diplomatic  protection  of  his 
own  government  if  the  state  violates  this  minimum  of  rights. 

International  law  is  concerned  not  with  the  specific  provisions  of 
the  municipal  legislation  of  states  in  the  matter  of  aliens,  but  with  the 
establishment  of  a  somewhat  indefinite  standard  of  treatment  which  the 
state  cannot  violate  without  incurring  international  responsibility.  The 
state's  liberty  of  action,  therefore,  is  limited  by  the  right  of  other  states 
to  be  assured  that  a  certain  minimum  in  this  respect  will  not  be  over- 
stepped.^ A  stipulation  in  treaties  or  municipal  statutes  to  the  ef- 
fect that  the  state  is  not  responsible  to  aliens  to  any  greater  extent 
than  to  nationals  has  never  prevented  international  claims  where 
the  minimum  has  been  considered  as  violated,  nor  can  the  state's 
international  obUgations  be  avoided  or  reduced  by  provisions  of  mu- 
nicipal law,  or  by  the  fact  that  it  violates  the  rights  of  its  own  citizens.* 

1  Mr.  Brown's  view  as  to  the  relation  between  international  and  municipal  law  in 
the  rules  governing  aliens,  and  the  prominence  given  to  treaties  as  a  limitation 
upon  territorial  jurisdiction  is  opposed  to  modern  tendencies  and  theories  of  munici- 
pal law.    See  chap.  V  of  Brown,  Philip  M.,  Foreigners  in  Turkey,  Princeton,  1914. 

2  Pillet,  A.,  Principes  de  droit  int.  prive,  Paris,  1903,  p.  194. 
»  Pillet,  169  et  seq. 

*  See  Morse,  Citizenship,  §  79,  presenting  a  forceful  account  (from  McCarthy)  <rf 
Palmerston's  views.    Boeck  in  20  R.  G.  D.  I.  P.  (1913),  366,  371. 


40  THE   DIPLOMATIC   PROTECTION   OF    CITIZENS   ABROAD 

The  obligation  of  "special  protection",  often  guaranteed  in  treaties, 
merely  places  aliens  upon  an  equality  with  citizens,  and  is  not  an  in- 
surance against  all  injury.  In  a  well-reasoned  opinion  on  a  claim 
arising  out  of  injuries  sustained  by  a  Mexican  citizen  during  the  Civil 
War  in  the  United  States,  Commissioner  Wadsworth  of  the  1868  com- 
mission stated  that  "special  protection"  has  been  given  when  a  govern- 
ment has  done  all  in  its  power  to  put  down  a  rebeUion  and  enforce 
the  law.^  Hall  aptly  remarks  ^  that  a  government  cannot  be  re- 
quired to  provide  itself  with  the  most  efficient  means  possible  for  the 
purpose  of  protecting  aliens,  nor  is  it  bound  to  alter  its  form  of  ad- 
ministration to  give  the  "highest  possible"  protection  to  the  interests 
of  foreign  states.  The  guarantee  of  "equal  protection"  sometimes 
found  in  treaties  does  not  confer  the  same  substantive  rights  as  are 
granted  to  nationals,  but  only  assures  full  remedial  processes  for  the 
protection  of  such  rights  as  are  granted  to  the  alien. 

§  22.  Recognition  of  Legal  Personality. 

Any  attempt  to  define  this  minimum  is  fraught  with  some  danger, 
inasmuch  as  it  varies  from  state  to  state.  In  modern  practice,  it  may 
be  said  that  the  first  obhgation  of  the  state  is  the  recognition  of  the 
alien's  legal  personality  and  with  it,  the  national  allegiance  which 
binds  him  to  his  own  country.  In  the  duties  which  the  state  may 
impose  on  the  ahen  it  is  limited  by  the  obligations  resulting  from  this 
bond  of  nationality.  The  state  cannot  compel  the  ahen  to  renounce 
his  nationality  or  the  rights  flomng  from  it.  On  the  other  hand,  it 
has  been  noted  that  in  the  matter  of  status  and  capacity,  the  state 
(among  the  countries  of  Europe)  appUes  his  national  law  as  his  personal 
statute.  The  modern  tendency  is  to  bring  about  an  approximation 
of  the  ahen  to  the  national  in  the  enjoyment  of  civil  rights.  The  term 
"civil  rights",  while  somewhat  vague  in  meaning,  may  in  its  broadest 
interpretation  be  regarded  as  including  all  rights  not  political,  and 
embraces  practically  all  the  rights  now  accorded  to  ahens  by  the  legis- 
lation of  the  more  civilized  states. 

»  Prats  (Mcx.)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2888,  2889.    See  also  Baldwin 
(U.  S.)  V.  Mexico,  Apr.  11,  1839,  ibid.  2859-2866. 
2  Hall,  4th  ed.,  230. 


STATUS   OF   FOREIGN   CORPORATIONS  41 

^  23.  Status  of  Foreign  Corporations. 

There  is  more  uncertainty  as  to  the  extent  of  the  obligation  to  rec- 
ognize the  legal  capacity  of  foreign  corporations.  Two  systems  have 
been  in  vogue,  the  one  restrictive,  which  gives  a  foreign  corporation 
few  if  any  rights  and  scarcely  even  recognizes  its  civil  personality, 
the  other  hberal,  which  grants  a  foreign  corporation,  within  certain 
specified  limitations,  the  same  rights  as  a  natural  person,  its  civil  per- 
sonality being  fully  recognized. 

The  restrictive  system,  supported  \'igorously  by  Laurent  ^  and 
his  school,  is  founded  upon  the  Roman  "fiction"  theory  of  the  nature 
of  juridical  personality.  The  corporation  is  considered  as  haxdng 
an  existence  only  in  the  territory  which  has  given  it  legal  birth,  and 
recognition  of  its  personaUty  abroad  is  deemed  to  require  an  express 
act  of  the  local  sovereign  power,  a  decree,  a  statute  or  a  treaty.  The 
fallacies  of  this  system,  which  with  the  necessities  of  modern  interna- 
tional commercial  relations  is  rapidly  being  discarded,  consist  in  over- 
emphasis of  the  fiction  theory  of  the  corporation,  and  a  failure  to  dis- 
tinguish between  ci\al  and  functional  capacity. 

A  corporation,  certainly  a  commercial  corporation,  is  composed 
of  human  beings  and  has  a  real  personality,  which  is  a  reality  in  every 
state.  Its  civil  capacity,  consisting  of  its  right  to  sue  and  be  sued, 
to  enter  into  contracts  and  own  property,  is  essential  to  its  existence, 
and  may  be  recognized  quite  apart  from  any  permission  to  transact 
business  or  fulfill  its  functions.  With  these  facts  in  mind,  the  liberal 
system  founds  its  doctrine  upon  an  assimilation  between  foreign  cor- 
porations and  natural  persons.  The  corporation's  civil  capacity  and 
status  are  governed  by  its  personal  law  and  only  its  functional  capacity 
is  under  the  control  and  regulation  of  the  territorial  state.  This  con- 
trol is  hmited  to  those  relations  of  the  corporation  which  concern  the 
citizens  of  the  state,  its  pubUc  poUcy,  or  the  interests  of  third  parties. 
Thus,  all  questions  of  internal  management  are  matters  of  personal 
law  and  are  free  from  interference  by  the  territorial  state.    The  func- 

'  Laurent,  Droit  civil  international,  IV,  119  et  seq.;  Taney,  Ch.  J.,  in  The  Bank  of 
Augusta  V.  Earle,  13  Peters,  519  is  sometimes  (correctly,  it  is  believed)  cited  in  suj> 
port  of  this  view.  See  also  the  agreement  of  June  25,  1904  between  the  United  States 
and  Russia  recognizing  the  civil  capacity  of  corporations,  Malloy's  Treaties,  1910, 
II,  1534. 


42  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

tional  capacity  of  a  corporation  is  limited  by  its  charter  and  the  law 
of  the  state  where  it  transacts  business. 

At  the  present  day,  practically  all  states  recognize  the  civil  capacity 
of  foreign  corporations  as  they  do  that  of  natural  persons.  With  the 
growth  of  commerce,  local  limitations  on  functional  capacity  are  grad- 
ually being  removed,  either  by  statute  or  treaty,  those  that  still  exist 
being  dictated  by  interests  of  public  policy.  Foreign  corporations, 
Uke  aliens  generally,  are  subject  to  local  regulations  of  registration 
and  other  provisions  of  penal  and  poUce  laws.^ 

§  24.  Other  Rights  of  the  Alien. 

Assuming  that  the  alien  has  not  fallen  within  the  excluded  classes 
and  that  by  treaty  or  by  legislation  his  right  to  admission  is  recognized, 
the  state,  it  would  appear,  must  grant  him  in  addition  rights  of  sojourn 
and  trade.  Some  continental  writers  reduce  these  into,  first,  the  right 
of  international  communication;  and  second,  the  right  of  circulation  and 
residence.^  The  right  of  communication  implies  the  use  of  the  mails, 
transportation  facilities,  secrecy  of  correspondence,  etc.  The  right  of 
circulation  and  residence  is  subject  to  the  requirement  of  passports 
and  the  possibility  of  expulsion,  should  the  alien's  presence  become  a 
menace  to  the  public  interests  of  the  state.  From  the  rights  of  resi- 
dence and  circulation  spring  the  right  to  security  of  person  and  prop- 
erty, always  subject,  however,  to  the  penal  laws  and  local  ordinances. 

"Civil  rights"  being  a  term  of  uncertain  definition,  numerous  public- 
ists have  adopted  a  category  of  rights,  which  they  call  public  rights,  the 

1  This  important  subject,  the  status  of  foreign  corporations,  cannot  here  be 
treated  exhaustively.  Full  discussions  will  be  found  in  the  excellent  monograph  of 
Edward  H.  Young,  Foreign  companies  and  other  corporations,  Cambridge,  1912, 
and  particularly  in  his  article:  Status  of  foreign  corporations  and  the  legislature,  23 
Law  Quarterly  Review  (1907),  151-164,  290-303.  See  also  Fillet,  A.,  Des  personnes 
morales  en  droit  international  prive,  Paris,  1914;  Haladjian,  B.,  Des  personnes 
morales  etrangeres,  Paris,  1901;  and  Mamelok,  A.,  Die  juristische  Person  im  inter- 
naticjnalen  Privatrecht,  Zurich,  1900,  and  the  works  cited  in  the  general  and  national 
bibliografjhies  in  the  Appendix,  infra,  especially  the  works  by  Diena,  Diritto  com- 
mercialo  internazionale,  I,  p.  229  el  seq.,  Bar,  op.  cil.,  227  et  scq.;  Dicey,  op.  cit., 
48.5,  and  for  American  cases,  487-489;  Pillet,  op.  cit.,  181  et  seq.;  Moore's  Dig.,  IV,  19 
and  Annuaire  of  the  Institute  of  Int.  Law,  v.  XI  (1891  session),  171,  and  for  public 
and  quasi-public  corporations,  v.  XVI  (1897  session),  279  et  seq. 

^  Pillet,  op.  cit.,  18G;  see  also  Baty,  T.,  International  law,  London,  1909,  41. 


MATTERS   OF   PUBLIC   LAW  43 

enjoyment  of  which  must  be  granted  to  every  alien.  A  list  of  these 
rights  is  difficult  to  draw.  They  include  personal  and  religious  Uberty 
and  inviolability  of  domicil,  liberty  of  the  press,  and  other  rights. 
In  particular,  the  aUen  has  the  right  to  equal  protection  of  the  laws, 
which  involves  access  to  the  courts  and  the  use  of  the  executive  arm 
of  the  government  in  the  enforcement  of  the  rights  granted. 

MAXIMUM    POWER   OF   STATE    OVER   ALIENS 

§  24a.  Matters  of  Public  Law. 

Just  as  there  is  a  minimum  limit  of  rights  and  concessions  which 
the  state  must  grant  to  aliens,  so  there  is  a  maximum  limit  of  control 
by  the  state  which  it  cannot  exceed  without  violating  the  rights  of 
other  states.  The  obligations  due  by  the  alien  to  his  national  state 
and  the  rights  incident  to  the  bond  of  nationality  constitute  the  raison 
d'etre  of  this  superior  limit  of  the  action  of  the  state  with  respect  to 
aliens.  In  greater  part  it  operates  as  a  check  upon  the  state  of  resi- 
dence in  the  grant  of  political  rights  and  the  exaction  of  political  duties. 
Thus,  the  alien  as  a  general  rule  cannot  become  a  voter  and  is  in- 
eligible to  public  office.  Similarly,  he  is  unable  to  practice  those  pro- 
fessions or  occupations  which  involve  the  taking  of  an  oath  of  alle- 
giance; so  in  many  countries,  he  cannot  become  a  judge,  an  attorney 
at  law,  a  juryman,  or  witness  to  certain  transactions.  The  bond  of 
nationality  in  other  respects  inhibits  the  freedom  of  action  of  the  state 
over  the  aUen.  Thus,  it  cannot  confer  citizenship  upon  him  against 
his  will,  or  without  his  manifesting  an  intention  to  change  nationality. 
States  have  by  agreement  and  concession  fixed  among  themselves  the 
conditions  under  which  they  will  recognize  the  denationalization  of 
a  citizen  and  his  naturalization  in  another  state.  The  attempts  of 
Venezuela  in  1855  and  Brazil  in  1889  to  force  citizenship  on  resident 
aliens  met  with  \'igorous  protest.^  So  the  state  likewise  cannot  re- 
quire military  service  from  the  alien,  nor  subject  him  to  the  extraor- 
dinary taxes  and  military  burdens  which  citizens  must  bear.  These 
exemptions  are  usually  provided  for  by  treaty  and  will  be  more  fully 
discussed  presently. 

1 17  Clunet  (1890),  766;  Thomas  in  4  R.  G.  D.  I.  P.  (1897),  641.  See,  however, 
W.  W.  WiUoughby  in  1  A.  J.  I.  L.  (1907),  924.    See  also  infra,  §  232. 


44  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

§  25.  Matters  of  Private  Law. 
In  private  law,  the  maximum  limit  of  action  has  been  fixed  by  the 

obligation  to  respect  the  "personal  statute"  of  the  alien.  As  affecting 
alienage,  this  limitation  is  more  important  in  Europe,  where  nationality 
usually  controls  capacity  and  status,  than  in  the  United  States  and 
Great  Britain,  where  domicil  is  the  criterion  of  the  personal  statute. 
A  state  frequently  declines  to  give  effect  to  acts  done  by  the  alien  to 
escape  the  penalties  of  his  national  law.  So  in  some  states  a  marriage 
or  divorce  in  fraud  of  the  alien's  national  law  is  not  recognized.  In 
general,  it  may  be  said  that  the  clause  of  equality  between  national 
and  alien,  incorporated  either  in  treaty  or  statute,  operates  simply  a? 
a  limitation  upon  the  arbitrary  power  of  the  local  legislature  and  re- 
lieves the  alien  from  the  inferior  position  in  which  the  municipal  law 
might  have  placed  him.  It  does  not  relieve  him  from  those  exceptions 
to  equal  treatment  which  the  public  interest  in  many  countries  is 
beUeved  to  dictate,  e.  g.,  hmitations  upon  his  right  to  own  real  prop- 
erty, or  to  own  shares  in  national  vessels.  Likewise,  the  effect  and 
force  of  many  acts  of  the  alien  may  be  different  from  those  of  the  na- 
tional. He  may  be  required  to  register  his  alienage,  to  comply  with 
various  matters  of  form,  as,  e.  g.,  in  case  of  marriage,  and  in  other 
respects  accept  rules  different  from  those  applying  to  nationals.  So 
long  as  his  position  is  not  one  of  inferiority,  the  clause  of  equaUty  is 
not  considered  as  having  been  violated. 

Before  it  is  possible  to  establish  the  obligations  of  a  state  toward 
aliens,  which  must  be  done  before  the  responsibility  of  the  state  can 
be  determined,  it  is  necessary  to  examine  in  somewhat  greater  detail 
the  relations  between  the  state  and  the  alien,  the  rights  and  obliga- 
tions of  the  state,  and  the  rights,  duties  and  disabilities  of  the  alien. 

ADMISSION   AND   EXCLUSION 

§  26.  state's  Right  of  Exclusion. 

The  first  point  of  contact  between  a  state  and  an  alien  is  at  the 
frontier  or  port  where  he  presents  himself  for  admission.  The  first 
inquiry,  therefore,  before  examining  the  rights  of  the  alien  within 
the  country,  will  be  directed  toward  the  right  of  the  state  to  exclude 
and  expel  the  alien.    The  vast  extent  of  immigration  within  the  last 


state's  right  of  exclusion  45 

half  century  and  the  growth  of  commercial  intercourse,  accompanied 
by  a  general  recognition  of  the  right  of  emigration  and  expatriation, 
have  lent  considerable  importance  to  this  inquiry.  ^ 

Pubhcists  have  disagreed  as  to  the  governing  principles  and  govern- 
ments as  to  the  expedient  policy.  Those  writers  who  base  their  con- 
clusions upon  the  assumption  that  there  is  a  fundamental  right  of 
international  intercourse  between  states,  maintain  that  no  state  can 
absolutely  forbid  entrance  to  aliens,  although  it  may  exclude  those 
whose  presence  is  a  menace  to  the  welfare  of  the  state."  On  the  other 
hand,  taking  the  sovereignty  of  the  state  and  its  right  of  self-preservation 
as  the  point  of  departure,  other  pubhcists,  by  far  the  more  numerous, 
agree  that  there  is  an  inherent  right  of  the  state  to  exclude  aliens  at  its 
pleasure.^    As  Hall  justly  remarks,  however: 

"The  exercise  of  the  right  is  necessarily  tempered  by  the  facts  of 
modern  civilization.  For  a  state  to  exclude  all  aliens  would  be  to  with- 
draw from  the  brotherhood  of  civilized  peoples;  to  exclude  any  without 
reasonable  or  at  least  plausible  cause  is  regarded  as  so  vexatious  and 
oppressive,  that  a  government  is  thought  to  have  the  right  of  interfering 
in  favour  of  its  subjects  in  cases  where  sufficient  cause  does  not  in  its 
judgment  exist."  ^ 

Courts  in  the  United  States  and  Great  Britain  which  have  had  to 
pass  upon  the  question,  on  writs  of  habeas  corpus  or  in  actions  against 
administrative  officers  for  preventing  a  landing  or  for  the  enforce- 
ment of  an  order  of  deportation,  have  affirmed  the  right  of  the  state 

^  See  the  Resolutions  on  emigration  of  the  Institute  of  International  Law,  Annu- 
aire,  XVI,  242  et  seq. 

2  Bluntschli,  Dr.  int.  codifie,  §381;  Pozl  and  Mohl,  cited  by  Stoerk  in  Holtzen- 
dorff's  Handbuch,  II,  637;  Liszt,  Volkerreeht,  9th  ed.,  1912,  §  25,  p.  187. 

The  Institute  of  International  Law  adopted  the  following  resolution:  "The  free 
entrance  of  aliens  on  the  territory  can  only  be  prohibited  in  a  general  and  permanent 
manner  for  reasons  of  public  interest  and  extremely  grave  motives,  e.  g.,  by  reason 
of  a  fundamental  difference  of  morals  or  civilization,  or  by  reason  of  an  organization 
or  dangerous  accumulation  of  aliens  who  appear  en  masse.    Annuaire,  XII,  192,  220. 

^  See  Oppenheim,  I,  390  and  bibliography  there  cited.  See  also  von  Overbeck,  A., 
Niederlassungsfreiheit  u.  Ausweisungsrecht,  Karlsruhe,  1907;  Jeancourt-Galignani, 
A.,  L'immigration  en  droit  international,  Paris,  1908;  Bouv6,  C.  L.,  Exclusion 
and  expulsion  of  aUens  in  the  United  States,  Washington,  1912;  Regulations  and 
resolutions  of  the  Institute  of  International  Law,  Annuaire,  XI,  277,  41,  273;  XVI, 
262  and  276.    See  also  §  VI,  Control  of  immigration,  in  Moore's  Dig.  IV,  142  et  seq. 

*Hall,  6th  ed.,  211. 


46  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

to  exclude  those  whom  it  will.^  The  Supreme  Court  of  the  United 
States  has  stated  what  is  beUeved  to  be  a  general  principle : 

'It  is  an  accepted  maxim  of  international  law,  that  every  sovereign 
nation  has  the  power,  as  inherent  in  sovereignty,  and  essential  to  self- 
preservation,  to  forbid  the  entrance  of  foreigners  within  its  dominions, 
or  to  admit  them  only  in  such  cases  and  upon  such  conditions  as  it  may 
see  fit  to  prescribe."  ^ 

Diplomatic  papers  have  uniformly  upheld  the  sovereign  right  of  ex- 
clusion.^ In  England,  it  has  been  held  that  an  alien  has  no  legal  right 
enforceable  by  action  to  enter  British  territory.^ 

International  intercourse,  however,  is  so  essential  to  the  existence 
of  the  society  of  states  that  in  practice  the  right  of  admission  is  freely 
accorded,  subject  to  specific  exceptions  fully  announced  in  advance  and 
recognized  as  reasonable  by  international  public  opinion.  The  net- 
work of  commercial  treaties  by  which  the  states,  of  the  white  race 
at  least,  are  bound  together,  has  practically  established  the  rule  of 
freedom  of  international  intercourse.  A  government  that  would  seek 
to-day  to  take  advantage  of  its  right  to  exclude  all  aliens  would  violate 
the  spirit  of  international  law  and  endanger  its  membership  in  the 
international  community. 

Yet  it  is  upon  this  ultimate  power  that  is  based  the  right  of  the 
state  to  exclude  undesirable  aliens  and  fix  the  conditions  of  admission. 
The  power  of  exclusion  is  admitted  in  the  passport  system  ^  which  was 
at  one  time  universal  and  still  exists  to  a  limited  extent.  The  grounds 
of  exclusion  are  fixed  by  the  public  interests  of  each  state,  and  govern- 
ments claim  the  right  to  determine  for  themselves  what  aUens  or 
classes  of  aliens  are  dangerous  or  undesirable.     For  political,  social 

'  Musgrove  v.  Chun  Teeong  Toy,  L.  R.  1891,  App.  Cas.  272;  The  Chinese  Exclu- 
sion Case,  Chae  Chan  Ping  v.  United  States,  130  U.  S.  581,  606;  Nishiraura  Ekiu  v. 
United  States,  142  U.  S.  651,  659;  U.  S. ;;.  Greenawalt,  213  Fed.  901.  See  also  address 
of  Mr.  Mastier  before  the  International  Law  Association,  19th  Report,  p.  48. 

2  Nishimura  Ekiu  v.  United  States,  142  U.  S.  659.  See  also  papers  of  Charles  Earl 
and  C.  L.  Bouve  before  the  1911  meeting  of  the  American  Society  of  International 
Law,  Proceedings,  66,  95. 

'  See  extracts  quoted  in  Wharton's  Dig.,  §  206.  Agreement  between  U.  S.  and 
Venezuela  for  settlement  of  Jaurett  claim,  For.  Rel.  1909,  629. 

*  Musgrove  v.  Chun  Teeong  Toy,  L.  R.  1891,  App.  Cas.  272,  282. 

» Westlake,  I,  216. 


state's  right  of  exclusion  47 

and  economic  reasons  various  classes  of  aliens  are  excluded.^  They 
may  usually  be  brought  within  one  or  more  of  the  following  classes, 
which  comprise  those  persons  who  by  existing  law  are  excluded  from 
the  United  States:  (1)  aliens  who  are  physically  or  morally  defective; 
(2)  aliens  contagiously  diseased ;  (3)  alien  paupers  or  beggars  and  aliens 
generally  who  are  incapable  of  maintaining  themselves,  or  are  likely  to 
become  a  public  charge;  (4)  aliens  deemed  morally,  socially,  or  politically 
unfit,  as  prostitutes,  procurers,  criminals,  anarchists  and  polygamists; 
(5)  contract  laborers,  or  aliens  induced  or  solicited  to  migrate  by  offer  or 
promise  of  employment;  (6)  assisted  aliens,  or  those  whose  passage  is 
provided  by  any  corporation,  society,  or  foreign  government;  (7)  alien 
races  considered  inferior  or  not  capable  of  assimilation,  e.  g.  Chinese  and 
certain  Japanese  laborers  in  the  United  States  and  many  of  the  British 
colonies,  the  gypsies  in  many  European  countries,  and  Turks  in 
Panama.^ 

The  stipulations  of  commercial  treaties,  providing  for  general 
freedom  of  intercourse,  do  not  prevent  the  exclusion  of  these  unde- 
sirable classes.  International  claims  because  of  exclusion  are  rare. 
Nevertheless,  the  United  States  has  on  numerous  occasions  protested 
against  discriminations  against  certain  classes  of  American  citizens  ex- 
cluded because  of  race,  profession  or  creed,  especially  where,  by  treaty, 
rights  of  residence  and  travel  were  assured  to  all  citizens  of  the 
United  States.  The  most  prominent  of  this  type  of  cases  was  the 
long  continued  protest  against  the  exclusion  by  Russia  of  American 
citizens  of  Jewish  faith,  which  ultimately  culminated  in  the  abroga- 
tion by  the  United  States  of  the  treaty  of  1832  with  Russia.^    While 

^  Frisch,  o'p.  cit.,  91  et  seq.  The  Institute  of  International  Law  has  declared  that 
the  protection  of  national  labor  is  not  alone  a  sufficient  reason  for  exclusion.  (Annu- 
aire,  XII,  220.) 

^Charles  Earl  in  Proceedings  of  the  American  Society  of  Int.  Law,  1911,  67-68. 
See  also  Moore's  Dig.  IV,  142  et  seq.,  and  31  Clunet  (1904),  977.  By  a  law  of  Au- 
gust 13,  1903  Haiti  excluded  all  Syrians  from  that  country  and  fixed  a  time  for  those 
then  in  the  country  to  leave.  For.  Rel.  1904,  p.  394.  But  the  statute  is  not  en- 
forced against  Syrians  who  became  naturalized  Americans  prior  to  the  law  of  1903, 
and  were  resident  in  Haiti  before  1903.  For  the  Panama  regulations  see  11  R.  G.  D. 
I.  P.  (1904),  565-567. 

'  Cases  of  such  special  discrimination,  with  extracts  from  the  diplomatic  corre- 
spondence will  be  found  in  Moore's  Dig.  IV,  109  et  seq.    But  the  U.  S.  did  not  deny 


48  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

the  enforcement  of  an  order  of  exclusion  against  all  the  subjects  of 
one  state  might  be  considered  an  unfriendly  act  and  warrant  reprisals 
and  perhaps  war,  states  have  generally,  in  the  absence  of  treaty, 
refrained  from  contesting  the  practice  of  excluding  their  individual 
subjects  considered  undesirable  by  other  states.  An  arbitrary  or  un- 
just exclusion  would  give  rise  rather  to  a  poUtical  than  to  a  legal 
pecuniary  claim,  unless  in  violation  of  local  law. 

Closely  connected  with  the  right  of  exclusion  or  admission  on  con- 
ditions is  the  right  of  asylum  on  what  is  in  fact  national  territory. 
This  is  the  right  of  a  state  by  virtue  of  its  territorial  supremacy  to 
admit  to  its  territory  fugitive  aliens  from  other  states  and  to  accord 
them  such  hospitality  as  in  its  discretion  it  desires  to  extend.  It  is 
not,  as  is  often  erroneously  assumed,  a  right  of  the  individual  to  claim 
admission,  but  by  international  practice  it  has  been  conceded  to  be  a 
right  of  the  state.  It  is  granted  usually  to  poUtical  offenders,  whose 
surrender  is  generally  excepted  from  the  stipulations  of  extradition 
treaties.  The  duty  which  every  state  by  comity  owes  to  other  states 
warrants  it  in  using  repressive  measures  to  prevent  the  received  alien 
from  becoming  a  source  of  danger  to  the  safety  of  another  state.  ^ 

EXPULSION 

§  27.  State's  Power  to  Expel. 

The  power  to  expel  aliens  rests  upon  the  same  foundation  and  is 
justified  by  the  same  reasons  as  the  power  to  exclude,  namely;  the 
sovereignty  of  the  state,  its  right  of  self-preservation,  and  its  public 
interests.    The  Supreme  Court  has  said: 

the  right  of  Haiti  to  exclude  all  Syrians,  even  naturalized  Americans  (except  those 
above  mentioned),  in  view  of  the  fact  that  the  U.  S.  excluded  Chinese,  regardless  of 
their  acquired  nationality.  (Act  of  July  5,  1884,  ch.  220,  §  15;  20  Op.  Atty.  Gen, 
729.)  While  admitting  Haiti's  right,  the  U.  S.  insisted  that  there  be  no  discrimina- 
tion between  Americans  and  other  nationals  of  Syrian  origin.  Great  Britain  insisted 
that  those  already  established  in  business  be  not  disturbed. 

^  Oppenheim,  op.  dt.,  392;  Hall,  6th  ed.,  211.  From  the  state's  right  of  asylum  is 
derived  the  practice  of  legations  and  consulates  in  granting  asylum  to  political 
refugees.  An  abuse  of  the  right  has  occasionally  resulted  in  its  extension  to  other 
classes  of  offenders,  which  has  given  rise  to  diplomatic  remonstrance.  See  article 
by  Barry  Gilbert,  The  practice  of  asylum  in  legations  and  consulates  of  the  United 
States,  3  A.  .J.  I.  L.  (1909),  562-595.   The  practice  is  discouraged  by  the  United  States. 


state's  power  to  expel  49 

"  The  right  to  exclude  or  expel  aliens,  or  an}^  class  of  aliens,  absolutely 
or  upon  certain  conditions,  in  war  or  in  peace,  [is]  an  inherent  and  in- 
alienable right  of  every  sovereign  and  independent  nation,  essential  to 
its  safety,  its  independence,  and  its  welfare."  ^ 

Nor  is  the  right  of  expulsion  Umited  by  treaties  which  guarantee  to  the 
citizens  of  the  contracting  parties  the  right  of  residence  and  travel, 
or  of  trade,  and  other  rights.  Pradier-Fodere  expresses  the  principle 
as  follows: 

"Treaties  and  declarations  by  which  a  government  stipulates  for  its 
citizens  a  right  of  sojourn,  of  acquiring  real  property,  of  carrying  on  an 
industry  on  foreign  territory,  ought  not  to  be  interpreted  as  involving  a 
renunciation  on  the  part  of  the  other  contracting  power  of  its  right  to 
expel  aUens  whose  conduct  should  make  it  desirable."  2 

As  will  be  seen,  however,  this  right  is  not  unquahfied.  It  cannot  be 
exercised  indiscriminately  or  arbitrarily,  but  is  limited  and  restricted 
by  the  obligations  imposed  upon  the  state  by  international  law.^ 

In  former  times  expulsion,  collective  and  individual,  was  freely  exer- 
cised. In  recent  times  collective  expulsion  has  been  resorted  to  in  case 
of  war  only  and  even  then  it  has  become  an  exceptional  measure. 
Individual  expulsion,  while  still  practiced,  and  claimed  by  states  to 
be  an  inherent  right  of  sovereignty,  has  likewise  been  limited,  by 
statute  and  treaty,  both  as  to  the  justif>dng  causes  and  the  manner  of 
exercise.  While  the  grounds  of  exclusion  are  usually  prescribed  by 
statute,  governments  rarely  attempt  to  enumerate  the  grounds  of 
expulsion.     Great  Britain   (Aliens  Act  of   1905,   5  Edw.   7,   c.   13),* 

1  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698,  711. 

2  Pradier-Fodere,  P.,  Traite  de  droit  int.  pub.,  Paris,  1887,  III,  §  1857.  The  right 
of  expulsion  is  sometimes  expressly  reserved  in  treaties.  Treaty  between  U.  S.  and 
Spain,  July  3,  1902,  art.  2,  Malloy,  II,  1702. 

'  Von  Bar  in  13  Clunet  (1886),  5;  Bluntschli,  Droit  int.  codifie,  §§  383-384;  Rolin- 
Jacquemyns  in  20  R.  D.  I.  (1888),  498. 

*  At  common  law  the  Crown  has  full  power  to  expel  a  foreigner.  The  right  has 
been  greatly  curtailed  by  statute,  and  is  practically  vested  entirely  in  Parliament. 
The  act  of  1905  gives  the  Secretary  of  State  the  right  to  expel  aliens  who  have  been 
(1)  convicted  in  the  United  Kingdom  of  serious  offenses;  (2)  who  have  been  certified 
within  twelve  months  after  their  arrival  to  have  been  in  receipt  of  parochial  relief 
or  found  wandering  without  ostensible  means  of  subsistence,  or  been  living  imder 
insanitary  conditions  due  to  overcrowding;  or  (3)  who  have  arrived  in  the  United 
Kingdom  since  the  passing  of  the  Act,  and  been  sentenced  in  a  foreign  country  for 


50  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

the  United  States  (Act  of  February  20,  1907),^  and  Brazil  (Law  of 
January  7,  1907)  ^  have  undertaken  by  statute  to  set  forth  the  grounds 
of  expulsion.  The  terms  of  the  statutes  are  quite  broad.  An  enumer- 
ation of  specific  grounds  is,  however,  an  exception  to  the  rule,  as 
states  have  not  generally  been  willing  thus  to  hamper  their  freedom 
of  action.  Nevertheless,  the  growth  of  international  intercourse  has 
tended  to  limit  the  exercise  of  the  right  of  expulsion,  and  by  municipal 
law  and  treaty  many  states  have  now  limited  their  freedom  of  action 
by  exempting  from  the  persons  liable  to  expulsion  certain  classes  of 
aliens,  by  permitting  judicial  recourse  against  administrative  orders, 
or  by  agreeing  to  notify  the  individual  or  his  legation  and  to  state 
the  grounds  of  expulsion. 

It  may  be  useful  to  examine  the  statutes  of  a  few  states  to  notice 
the  tendencies  of  modern  legislation.  France,  by  a  law  of  December  3, 
1849,  regards  expulsion  as  a  police  measure  to  which  all  aliens  are 
subject.  This  appears  to  be  also  the  rule  in  Germany,  Italy,  Rou- 
mania  and  other  countries.^  In  Belgium,  Brazil  and  other  states 
certain  categories  of  aliens  are  exempt,  particularly  those  who  by 
residence  or  marriage  have  identified  their  interests  with  the  state. 
Thus,  in  Belgium,  an  alien  who  has  established  his  domicil,  and,  in 
Brazil,  who  has  resided  in  the  country  for  two  years;  ■*  or,  in  Belgium, 
the  Netherlands  and  Brazil,  a  foreigner  who  has  married  a  native 

an  extraditable  crime  not  of  a  political  character.  See  §  3  of  the  Act,  and  Henriques, 
H.  S.  Q.,  Aliens  and  naturalization,  London,  1906,  p.  13. 

1  Bouve,  o-p.  cit.,  149  et  seq. 

24  R.  D.  I.  priv6  (1908),  855;  For.  Rel.  1907,  I,  113-117;  34  Clunet  (1907), 
1217.    See  also  Martini,  A.,  L'expulsion  des  Strangers,  Paris,  1909,  p.  83. 

3  Martini,  op.  cit.,  42  et  seq.;  Pradier-Fod^rd,  op.  cit.,  Ill,  §  1858. 

*  In  some  other  countries,  a  definite  period  of  residence  acts  as  a  bar  to  the  right 
of  exi)ulsion,  even  where  the  person  has  entered  in  violation  of  the  exclusion  laws 
or  after  arrival  came  within  their  categories  of  undesirability.  Thus,  the  Mexican 
law  of  Dec.  22,  1908  fixes  a  period  of  three  years,  and  the  United  States  act  of  Feb.  20, 
1907  permits  deportation  of  various  classes  of  undesirables  within  one  and  sometimes 
within  three  years,  except  that  alien  prostitutes  may  by  the  amendment  of  March  26, 
1910  (sec  182  Fed.  Rep.  894,  185  Fed.  Rep.  967,  and  209  Fed.  Rep.  496)  be  deported 
at  any  time. 

A  colle(!tion  of  th(!  statutes  of  various  countries  relating  to  expulsion  will  be  found 
in  the  Apfjcndix  of  the  works  of  Martini  and  Bouv6,  cited  above,  and  in  Fiore'e  Droit 
international  pdnal  (Antoine's  edition),  chap.  III. 


GROUNDS   OF  EXPULSION  51 

woman  and  who  (in  Belgium  and  the  Netherlands)  has  had  one  or 
more  children  during  his  residence  or  (in  Brazil)  is  a  widower  with  a 
native  born  child  cannot  be  expelled.^  In  Venezuela^  and  other 
Latin-American  countries  expulsion  is  often  limited  by  the  law  to 
transient  aliens.  Again,  Belgium  and  Luxemburg  do  not  expel  minors 
born  there  of  foreign  parents  who  may  claim  native  citizenship  one 
year  after  majority.^  The  rule  is  becoming  general  that  domiciled 
aliens  shall  not  be  expelled  even  as  a  penalty  for  crime. 

§  28.  Grounds  of  Expulsion. 

The  legitimate  causes  of  expulsion  it  is  impracticable  to  enumerate. 
A  general  justification  for  the  action  may  be  summed  up  in  the  words 
"the  pubUc  interests  of  the  state."  As  the  order  affects  the  citizens 
of  another  state,  it  has  in  practice  become  the  rule  that  the  govern- 
ment exercising  the  right  of  expulsion  must  on  demand  furnish  evi- 
dence that  the  action  was  based  on  a  legitimate  fear  that  the  public 
interests  were  in  danger;  for  while  in  theory  an  absolute  right  and  dis- 
cretion are  vested  in  the  government,  an  arbitrary  expulsion  constitutes 
a  basis  for  an  international  claim.  The  grounds  of  expulsion  are  often 
identical  with  those  justifying  exclusion,  namely,  undesirabhty  of  a 
moral,  social  or  economic  kind.  In  most  statutes  governing  immigra- 
tion, the  right  of  expulsion  or  deportation  is  a  sanction  for  the  provi- 
sions relating  to  exclusion,  and  numerous  expulsions  are  founded  on  the 
charge  of  presence  in  the  territory  in  violation  of  its  laws  or  the 


'  Belgium,  law  of  Feb.  12,  1S97.  See  Halot,  A.,  Traite  de  la  situation  legale  des 
Strangers  en  Belgique,  Bruxelles,  1900.  Belgian  decisions  cited  in  7  R.  D.  I.  prive 
(1911),  411-417. 

Netherlands.  Jitta,  J.,  Le  droit  d'expulsion  des  etrangers  dans  la  legislation  des 
Pays-Bas,  29  Clunet  (1902),  66-70. 

Brazil.  Instructions  of  May  23,  1907  in  execution  of  the  law  of  Jan.  7,  1907; 
37  Clunet  (1910),  1377-1380.  See  also  4  Ztschr.  f.  Volkerrecht,  62-64.  For  deci- 
sions see  5  R.  D.  I.  prive  (1909),  632;  6  ibid.  (1910),  637,  and  3  A.  J.  I.  L.  (1909), 
600.    See  also  Martini,  op.  cit.,  47. 

^Law  of  April  16,  1903,  art.  6,  quoted  in  Martini,  op.  cit.,  48;  see  also  Jaurett 
(U,  S.)  V.  Venezuela,  Sen.  Doc.  413,  60th  Cong.,  1st  sess.,  20  et  scq.  Jaurett  had  by 
five  years'  residence  established  his  domicil  in  Venezuela;  $3,000  indemnity  was 
paid  by  Venezuela.    For.  Rel.  1909,  629. 

3  Art.  9  of  the  civil  code  of  Belgium  and  Luxemburg.    See  Martini,  op.  cit.,  46. 


52  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

regulations  concerning  the  admission  of  foreigners.  In  most  countries 
where  the  ground  of  undesirability  is  economic,  a  residence  for  a 
limited  period  will  bar  the  use  of  the  power  of  expulsion.  In  addition 
to  the  economic  and  social  grounds  of  undesirabihty,  political  reasons, 
especially  war,  have  often  been  the  basis  of  expulsion  orders.  Per- 
haps the  most  frequent  cause  of  expulsion  is  conviction  for  crime.  All 
countries  reserve  this  right,  although  it  is  resorted  to  usually  in 
flagrant  cases  only,  where  the  presence  of  the  alien  may  compromise 
the  public  safety.  Where  the  public  necessity  is  sufficiently  great, 
especially  where  the  crime  is  of  a  political  nature,  expulsion  may  take 
place  on  executive  order  without  a  judicial  conviction.  Primarily, 
indeed,  expulsion  is  an  act  of  state  which  escapes  judicial  review. 
In  the  case  of  countries  where  by  treaty  a  right  of  residence  and  access 
to  courts  is  assured  to  citizens  of  the  United  States,  the  Department 
of  State  has  claimed  that  a  citizen  charged  with  a  non-political  crime 
is  entitled  to  a  judicial  trial  before  his  expulsion.^  It  has  been  held 
that  the  right  to  prosecute  criminally  and  the  right  to  deport  or  expel 
are  inconsistent  as  concurrent  rights;  the  proceedings  must  be  suc- 
cessive.- In  some  countries,  e.  g.,  in  Belgium  and  Luxemburg,  expulsion 
may  be  ordered  for  crimes  committed  abroad,  presumably  only  when  a 
conviction  has  been  had.  In  some  countries  of  Latin- America  the 
bringing  of  an  unjust  diplomatic  claim  against  the  state,  unless  it  be 
adjusted  in  a  friendly  manner,  is  a  ground  for  expulsion.^  The  fol- 
lowing cases,  a  few  among  many,  which  have  occurred  in  international 
practice,  indicate  a  wide  range  of  grounds  for  expulsion:  for  spreading 
socialistic  propaganda  (Jaures  case);  ^  for  promoting  and  organizing  a 
strike  (Ben  Tillett's  case) ; ''  for  practicing  the  art  of  healing  without  a 

1  Wiener's  claim  v.  Haiti,  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Sraythe,  Nov.  5, 
1894.  For.  Rel.,  1895,  II,  803.  See  also  Santangelo  (U.  S.)  v.  Mexico,  April  11,  1839, 
Moore's  Arb.  3333  and  Lapradelle's  Recueil,  I,  473. 

^  U.  S.  V.  Lavoie,  182  Fed.  Rep.  943.  See  also  the  case  of  Mgr.  Montagnini  in 
France,  14  R.  G.  D.  I.  P.  (1907),  175;  J.  Challamel  in  Journal  des  Debate,  March  12, 
1907,  reprinted  in  34  Clunet  (1907),  331-334. 

'  E.  g.,  Constitution  of  Nicaragua,  art.  12. 

*  Jaures  (France)  v.  Germany,  1905,  Moore's  Dig.  IV,  69. 

^  Ben  Tillett  (Great  Britain)  v.  Belgium,  August  20,  1896;  Desjardins,  Umpire, 
26  Clunet  ( 1S99),  203-210;  Conflit  entre  I'Angleterre  et  la  Belgique  k  propos  de  Tex- 
pulsion  du  sieur  Ben  Tillett  de  la  Belgique,  Bruxelles,  1900. 


GROUNDS   OF   EXPULSION  53 

license  (Edwards'  case);  ^  for  writings  or  speeches  derogatory  to  the 
government  or  the  army  (case  of  Father  Forbes  in  France;  ^  Hott- 
mann  case  in  Switzerland ; '  Kennan  case  in  Russia) ;  *  for  anarchy 
(Kropotchine  case  in  Switzerland) ;  '  for  preaching  polygamy  (Mormon 
missionaries  in  Germany) ;  ^  for  spying  or  suspicion  thereof  (Hofmann 
and  Richtofen  cases  in  Switzerland) ;  ^  for  giving  immoral  performances 
(Belgium) ;  ^  for  intrigues  against  the  state  (expulsion  of  Spanish 
ambassador  from  England  in  1584  and  similar  cases)  ^  or  against 
third  states  (General  Boulanger  and  Count  Chambord  in  Belgium) ;  ^^ 
and,  among  the  cases  with  which  the  United  States  has  had  to  deal, 
the  expulsion  by  European  countries,  particularly  German}^  and  Aus- 
tria, of  natives  of  those  countries  who  by  naturaUzation  in  the  United 
States  have  evaded  miUtary  service. 

The  resolutions  of  the  Institute  of  International  Law  at  its  Geneva 
meeting  in  1892  enumerated  those  classes  of  undesirable  aliens  who 
might  properly  be  expelled:  .(1)  Aliens  who  have  entered  the  territory 
fraudulently  in  violation  of  the  rules  governing  admission,  although  if 
there  is  no  other  reason  for  expulsion,  they  should  not  be  expelled 
after  having  resided  six  months  in  the  country;  (2)  aUens  who  have 
established  their  domicil  or  residence  within  the  territory  in  violation 
of  an  express  prohibition;  (3)  aUens  who,  when  they  entered,  were 
afflicted  with  a  disease  dangerous  to  public  health;  (4)  paupers  or 
vagabonds,  or  those  subject  to  poor  reUef;  (5)  aliens  convicted  of 
crimes  of  a  serious  nature;  (6)  aliens  convicted  abroad  of  crimes  made 
extraditable  either  by  municipal  legislation  of  the  country  of  sojourn 

1  Edwards  (U.  S.)  v.  Belgium,  1900,  Moore's  Dig.  IV,  S3. 

2  19  Clunet  (1892),  405. 

»  21  Clunet  (1894),  672;  see  also  ibid.  982. 

4  Moore's  Dig.  IV,  94. 

5  9  Clunet  (1882),  220;  see  also  U.  S.  Act  of  Feb.  20,  1907  reenacting  Act  of  March  3, 
1903  and  the  case  of  U.  S.  ex  rel.  Turner  v.  WiUiams,  194  U.  S.  279;  Moore's  Dig.  IV, 
95;  article  by  N.  W.  Sibley,  International  law  and  the  aliens  act.  Law  Mag.  and  Rev., 
1909,  p.  432;  Martini,  op.  cit.,  69. 

6  For  Rel.,  1898,  p.  347. 

7  Hofmann  case,  20  Clunet  (1893),  671;  Richtofen  case,  29  Clunet  (1902),  973; 
10  R.  G.  D.  I.  P.  (1903),  106. 

*  Tchernoff,  J.  Protection  des  nationaux  r^sidant  k  I'^tranger,  Paris,  1899,  p.  453. 

*  Martini,  op.  cit.  71  and  cases  there  cited. 

»  16  Clunet  (1889),  66;  ilnd.  73;  Martini,  op.  cit.,  72. 


54  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

or  by  treaty;  (7)  aliens  guilty  of  inciting  infractions  of  public  security, 
although  the  acts  as  such  may  not  be  punishable  according  to  ter- 
ritorial law  and  are  only  consummated  abroad;  (8)  aliens  guilty  of 
attacking  by  the  press  or  otherwise  a  foreign  state  or  sovereign  or 
its  institutions,  provided  the  acts  are  punishable  according  to  the  law 
of  the  expelling  state,  if  they  had  been  committed  abroad  by  subjects 
and  directed  against  that  state;  (9)  aliens  who  are  guilty  of  attacks  or 
outrages  against  the  state,  nation,  or  sovereign,  published  in  the  for- 
eign press;  (10)  aliens  who  in  time  of  war  or  imminence  of  war  com- 
promise by  their  conduct  the  security  of  the  state.  ^ 

§  29.  Method  of  Exercising  Right  of  Expulsion. 

In  many  countries  expulsion  is  carried  out  by  administrative  order 
of  the  minister  of  interior  or  other  executive  officer,  the  exercise  of 
the  power  being  discretionary.  This  is  the  case  in  France,  Italy, 
Russia  and  Switzerland.  In  Great  Britain  the  secretary  of  state 
issues  the  order,  but  only  on  the  recommendation  of  a  court;  in  Brazil 
it  requires  the  concurrence  of  the  minister  of  justice;  in  Belgium  and 
Roumania,  the  action  of  a  council  of  ministers  is  necessary,  and  this 
amendment  was  proposed  in  the  French  bill  of  March  14,  1882,  which 
was  not  enacted  into  law.  The  order  is  in  a  few  countries  subject 
to  judicial  review,  either  by  administrative  courts  or  special  boards, 
as  in  France  and  the  United  States,  or  by  the  ordinary  civil  courts, 
as  in  Brazil  and  the  Netherlands.  The  motives  or  grounds  of  the  ex- 
pulsion cannot  usually  be  reviewed  judicially  (e.  g.,  in  France,  Germany, 
Luxemburg,  Spain,  Great  Britain  and  even  in  Brazil),  but  only  the 
question  of  alienage  and  jurisdiction.^  In  one  case  at  least  (Morphy 
V.  France),  an  indemnity  was  granted  to  an  illegally  expelled  person.^ 

1  12  Annuaire  (189"2),  223,  art.  28;  see  also  11  Annuaire  (1891),  310. 

^  See  the  decision  of  Court  of  Appeals  of  Paris,  Nov.  9,  1911,  Andreu  v.  Public 
Minister,  8  R.  D.  I.  prive,  1912,  p.  382;  Martini,  op.  cit.,  167  et  seq.  In  the 
United  States,  a  court  will  order  a  rehearing  if  the  methods  used  by  the  adminis- 
trative board  have  been  unfair.  See  T.  R.  Powell,  Judicial  review  of  administrative 
action  in  immigration  proceedings,  22  Harvard  Law  Rev.  300-366,  Bouv6,  op.  cit., 
149  el  seq.  and  White  v.  Gregory,  213  Fed.  768.  See  also  Brazilian  decision  in  3  A.  J. 
I.  L.  (1909),  500  note. 

'  Conseil  d'Etat,  March  14,  1884.  See  decision  quoted  in  Martini,  177  and  also 
190  et  seq. 


INTERNATIONAL  PHASES  OF   EXPULSION  55 

The  following  features  of  recent  developments  in  the  exercise  of  the 
power  of  expulsion  may  be  noted:  It  is  used  as  a  supplementary 
penalty  against  the  aUen  for  the  more  important  crimes;  or  because 
the  alien  has  become  socially  or  politically  obnoxious;  it  is  now  rarely 
used  as  a  preventive  measure;  certain  categories  of  aliens  are  exempted 
from  the  exercise  of  the  power  of  expulsion;  and  resort  to  judicial 
review  is  becoming  more  frequent. 

The  Institute  of  International  Law  drew  up  at  its  1888  and  1892 
sessions  a  set  of  rules  which  in  large  part  confirm  existing  practice 
and  appear  reasonable.  In  the  discussions  upon  these  rules  three 
classes  of  expulsion  were  considered:  First,  where  despatch  is  urgent, 
as  in  time  of  war  or  serious  riots,  which  may  affect  individuals  or 
entire  classes.  The  peril  being  immediate  and  the  necessity  for  haste 
pressing,  it  was  recommended  that  this  power  be  given  to  one  police 
officer  without  recourse  to  judicial  or  administrative  review.  Such  a 
provision  should  be  merely  temporary.  Secondly,  extraordinary  meas- 
ures of  expulsion,  directed  against  whole  classes  and  not  against  in- 
dividuals. Such  a  measure,  used  as  a  last  resort  to  safeguard  the  state 
against  obnoxious  foreign  elements,  should  be  carried  out  only  after 
an  ordinance,  pubUshed  in  advance.  Thirdly,  ordinary  expulsion  of 
undesirable  individuals,  among  whom  a  distinction  was  made  between 
domiciled  and  transient  aliens,  only  the  latter,  in  the  opinion  of  the 
Institute,  being  properly  subject  to  expulsion. 

§  30.  International  Phases  of  Expulsion. 

It  is  now  desirable  to  take  up  the  more  directly  international  phases 
of  expulsion.  It  being  presumed  that  the  alien  has  overcome  the 
obstacles  to  admission  and  has  secured  the  right  of  residence,  it  is 
reasonable  to  assume  that  stronger  reasons  should  operate  to  justify 
an  expulsion  than  an  initial  refusal  of  admission.^ 

International  cases  arise  less  frequently  because  of  a  dispute  as  to 

the  expediency  of  or  necessity  for  expulsion,  states  having  a  wide 

'  Westlake,  op.  cit.,  111.  The  often  quoted  statement  of  Vattel  is  in  point  here: 
"The  sovereign  cannot  grant  admission  to  the  state  in  order  to  draw  aliens  into  a 
snare."  Vattel,  Droit  des  gens  (Pradier-Foder6's  edition,  1863),  Bk.  2,  ch.  8,  §  104, 
V.  II,  85.  Compare  the  action  of  Haiti  in  expelling  reaideat  Syrians,  For.  Rel.,  1901, 
Za6  et  seq. 


56  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

discretion  in  these  matters,^  than  because  of  a  harsh,  arbitrary,  or 
unnecessarily  injurious  exercise  of  the  right.  Even  where  the  justice 
of  the  expulsion  is  not  denied,  as  in  the  case  of  naturalized  citizens 
of  the  United  States  who,  returning  to  their  native  countries  make 
themselves  obnoxious  by  boasting  of  their  successful  evasion  of  the 
local  conscription  laws,  the  United  States  has  endeavored,  and  often 
with  success,  to  secure  an  amehoration  of  the  resulting  hardship  by 
obtaining  a  delay  in  the  execution  of  the  order  until  business  affairs 
could  be  adjusted  and  the  loss  to  the  individual  reduced  as  much  as 
possible.^  To  minimize  the  harsh  and  arbitrary  use  of  the  power, 
numerous  treaties  between  states  stipulate  that  the  subjects  of  the 
contracting  parties  shall  not  be  expelled  except  for  reasons  of  weight, 
that  the  person  expelled  shall  have  an  opportunity  to  clear  himself  of 
the  charges  against  him,  and  that  the  reasons  for  the  expulsion  shall 
be  communicated  to  his  state  or  legation  with  the  evidence.  This 
last  provision  occurs  especially  in  the  treaties  between  European 
states  and  the  countries  of  Latin  America,  where  expulsion  has  been 
frequently  resorted  to.  Even  in  the  absence  of  treaty  it  has  been 
held  that  the  alien's  national  government  has  a  right  to  know  the 
grounds  on  which  the  expulsion  is  based  and  to  have  the  assurance 
that  the  reasons  are  valid  and  sustained  by  evidence.^ 

Governments  of  expelled  subjects  and  international  commissions 
have  freely  assumed  the  right  to  pass  upon  the  justification  for  an 
expulsion^  and  the  sufficiency  of  the  evidence  in  support  of  the  charges 

«  Casanova  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  .\rb.  3353. 

2  See  report  of  Andrew  D.  White  to  Mr.  Hay,  Sec'y  of  State,  April  21,  1900,  For. 
Rel.,  1900,  p.  25  et  seq.  and  numerous  military  service  cases  between  United  States 
and  Austria  and  Germany  in  the  volumes  of  Foreign  Relations. 

3  Rolin-Jacquemyns  in  20  R.  D.  I.  (1888),  498;  Woolsey,  International  law,  §  63,  p. 
85;  Heffter,  op.  cit.,  §  62;  Spitzer's  case  v.  Austria,  For.  Rel.,  1892,  p.  15;  Boffolo 
(Italy)  V.  Venezuela,  Feb  13,  1903,  Ralston,  700;  Foster  et  al.  (U.  S.)  v.  Mexico,  July  4, 
1868,  Moore's  Arb.  3349;  Paquet  (Belgium)  v.  Venezuela,  March  7,  1903,  Ralston, 
269,  in  which  it  was  held  that  a  refusal  to  make  explanation,  on  request,  to  the  Gov- 
ernment of  the  individual  expelled  makes  such  expulsion  an  arbitrary  act. 

*  Secretary  of  State  Gresham  in  case;  of  Wiener  v.  Haiti,  For.  Rel.,  1895,  II,  800 
et  seq.;  Sec'y  of  State  Sherman  in  Loewi  v.  Haiti,  1898,  Moore's  Dig.  IV,  91;  Sec'y 
of  State  Olney,  Jan.  30,  1896,  in  Hollander  i>.  Guatemala,  P'or.  Rel.,  1895,  II,  775. 
This  is  one  of  the  ablest  documents  on  the  subject.  Zerman  (U.  S.)  v.  Mexico,  Juiy  4, 
1868,  Thornton,  Umpire,  Moore's  Arb.  3348;  Boffolo  (Italy)  v.  Venezuela,  Feb.  13, 


GROUNDS   OF    INTERNATIONAL   CLAIMS  57 

on  which  an  order  of  expulsion  is  based/  it  being  admitted  in  prac- 
tice, if  not  in  theory,  that  such  an  extreme  measure  as  expulsion  can 
be  used  only  when  it  is  shown  that  the  individual's  presence  is  det- 
rimental to  the  welfare  of  the  state.  ^ 

§  31.  Grounds  of  International  Claims. 

Arbitrary  expulsions  either  without  any  or  on  insufficient  cause,  or 
in  violation  of  the  provisions  of  municipal  law  or  of  a  treaty,  or  under 
harsh  or  violent  circumstances  unnecessarily  injurious  to  the  person 
affected  have  given  rise  to  diplomatic  claims  and  to  awards  by  ar- 
bitral commissions. 

An  expulsion  without  cause  or  based  on  insufficient  evidence  has 
been  held  to  afford  a  good  title  to  indemnity.  Thus,  an  expulsion 
under  circumstances  of  contumely  founded  on  an  unwarranted  sus- 
picion was  considered  by  Umpire  Ralston  of  the  Italian- Venezuelan 
Commission  of  1903  as  an  illegal  exercise  of  the  right  of  expulsion.^ 

In  several  cases  against  Venezuela  one  of  the  principal  allegations 

in  the  successful  contention  of  the  claimant  government  was  that  the 

expulsion  of  a  domiciled  ahen  (by  Venezuelan  law,  an  alien  residing 

there  for  two  years  or  more)  was  in  violation  of  her  municipal  law.^ 

1903,  Ralston,  705;  Atocha  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  opin.  589,  referred  to  in 
Moore's  Arb.  1264,  but  not  reported.  See  also  8  Ct.  CI.  427  and  17  Wall.  329,  and 
von  Bar  in  13  Clunet  (1886),  5  et  seq. 

1  France  claimed  the  right  in  certain  cases  in  Haiti,  For.  Rel.,  1894,  p.  344.  Great 
Britain,  on  the  expulsion  of  certain  British  subjects  from  Nicaragua  in  1895,  judged 
that  "no  adequate  or  reliable  evidence  has  been  produced  to  justify  the  arbitrary 
and  violent  action  taken  against  the  Queen's  subjects."  The  United  States  in 
Wiener's  and  Hollander's  case,  supra;  Boffolo  (Italy)  v.  Venezuela,  Feb.  13,  1903, 
Ralston,  705;  Maal  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  914. 

'^Sec'y  Olney  in  the  case  of  Hollander  v.  Guatemala,  For.  Rel.,  1895,  II,  775; 
Maal  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  914. 

*  Oliva  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  780;  for  an  expulsion  with- 
out cause  see  Zerman  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3348.  For  ex- 
pulsion on  insufficient  evidence,  see  cases  cited  in  footnote  1,  supra.  See  also  the 
correspondence  in  the  Wiener  case.  For.  Rel.,  1895,  II,  800  et  seq.  See  also  protocol 
in  Bezault  (France)  u.  Guatemala,  Apr.  25,  1904,  102  St.  Pap.  604;  Descamps  and 
Renault,  Recueil  des  traites  du  xx*  siecle,  1904,  124.  (This  case  does  not  appear 
to  have  come  to  trial.) 

<  Boffolo  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  705;  Paquet  (Belgium)  v. 
Venezuela,  March  7,  1903,  Ralston,  265;  Jaurett  (U.  S.)  v.  Venezuela,  Sen.  Doc.  413, 
60th  Cong.,  1st  sees.,  p.  20  et  seq.,  which  was  settled  by  diplomatic  agreement. 


58  THE    DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

The  violation  by  a  government  of  its  own  municipal  law  to  the  prej- 
udice of  an  alien  is  always  considered  a  valid  ground  for  a  claim. 

The  alleged  infringement  of  treaty  rights  has  given  rise  to  various 
diplomatic  claims  for  expulsion.  Thus,  numerous  awards  were  made 
by  the  domestic  commission  of  March  3,  1849  dealing  with  claims 
against  Mexico,  on  proof  that  the  claimants  were  expelled  from  Mexico 
during  the  period  of  the  Mexican  war  in  violation  of  the  stipulation 
of  art.  26  of  the  treaty  of  April  5,  1831,  that  in  case  of  war  "there 
shall  be  allowed  the  term  of  six  months  to  the  merchants  residing  on 
the  coast,  and  one  year  to  those  residing  in  the  interior  ...  to  arrange 
their  business,  dispose  of  their  effects,"  etc.^  Where  they  had  done 
nothing  to  forfeit  their  immunity  from  expulsion,  their  compulsory 
removal  before  the  expiration  of  the  six  months  or  the  year,  respec- 
tively, was  plainly  a  violation  of  the  treaty.  A  stipulation  in  a  treaty 
to  the  effect  that  citizens  of  the  United  States  shall  have  the  right 
to  reside  and  do  business,  or  are  under  the  protection  of  the  laws, 
has  reenforced  the  arguments  of  secretaries  of  State  in  protesting 
against  the  arbitrary  and  summary  expulsion  of  American  citizens 
without  notification  of  the  charges  and  an  opportunity  to  refute  them 
and  without  form  of  hearing  or  trial.  Thus  Secretary  of  State  Gres- 
ham,  in  protesting  against  the  summary  expulsion  of  Wiener  by 
Haiti,  laid  down  the  following  rule: 

"That  universal  sense  of  right  and  justice  which  suggests  that  no 
man  should  be  condemned  without  a  hearing  would  seem  to  require  that 
the  person  singled  out  for  expulsion  should,  as  a  general  rule,  first  be 
notified  of  the  charges  against  him  and  given  an  opportunity  to  refute 
them.  If  the  case  is  so  urgent  and  the  presence  of  the  foreigner  so  dan- 
gerous to  the  State  that  this  can  not  with  safety  be  done,  the  expelling 
Government  is  under  obligation  to  the  Government  of  the  person  ex- 
pelled to  explain  the  grounds  of  its  action,  by  not  only  asserting,  l>ut 
proving,  the  existence  of  facts  sufficient  to  justify  the  expulsion."  ^ 

'  Cases  reported  in  Moore's  Arb.  3334  et  seq.  In  one  case  (Togno,  Moore's  Arb. 
334.5)  it  was  held  that  a  tailor  "engaged  in  cutting  and  making  clothes  for  customers" 
was  not  a  "merchant,"  but  could  remain  uninterruptedly  so  long  as  he  conducted 
himself  peaceably,  under  another  stipulation  in  the  same  article  of  the  treaty;  see 
also  Gardiner  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Opinions  249  (not  in  Moore). 

'  Mr.  Greaham,  Sec'y  of  State,  to  Mr.  Smythe,  min.  to  Haiti,  Nov.  5,  1894,  For. 
Rel,  1895,  II,  802.    See  also  Hollander  case  v.  Guatemala  and  treaty  cited  by  Mr. 


GROUNDS   OF    INTERNATIONAL   CLAIMS  59 

So,  in  his  correspondence  in  connection  with  the  expulsion  of  Ameri- 
can citizens  from  Nicaragua  after  the  Bluefields  troubles  in  1894, 
Mr.  Gresham  defined  the  position  of  the  United  States  as  follows: 

"Americans  are  entitled,  under  the  treaty  of  1867,  to  reside  and  do 
business  in  Nicaragua ;  .  .  .  they  can  not  be  deprived  of  that  right  unless 
it  has  been  forfeited,  and  .  .  .  they  are  entitled  to  know  the  grounds  of 
forfeiture.  If  forfeiture  is  claimed  for  causes  other  than  political,  they 
are  entitled  to  an  open  and  fair  trial.  If  for  alleged  participation  in  an 
insurrectionary  movement  against  Nicaragua,  they  should  be  informed 
of  the  charge  against  them  and  the  evidence  in  support  of  it.  This 
position  will  be  maintained  by  the  United  States  hereafter  in  all  cases."  ^ 

The  naturalization  treaty  with  Austria,  by  which  naturalized  citizens 
of  the  United  States  are  to  be  permitted  to  reside  in  Austria  unmo- 
lested, has  given  support  to  the  contention  of  the  United  States  that  in 
the  absence  of  a  charge  of  some  wrongful  act,  a  native  Austrian  who 
had  emigrated  before  his  eligibihty  to  military  service  and,  returning 
as  a  naturalized  American  citizen,  was  peaceably  residing  in  Austria, 
was  not  subject  to  expulsion.-  In  cases  where  by  boasting  or  other 
obnoxious  conduct  or  example  the  expatriated  native  obtrusively 
displays  his  successful  evasion  of  mihtary  service  so  as  to  make  his 
presence  unwelcome,  the  United  States  has  not  denied  the  justifica- 
tion of  an  expulsion,  its  efforts  in  such  cases  being  confined  to  securing 
an  amelioration  of  the  hardship  to  the  victim.  The  United  States  has 
frequently  endeavored  to  overcome  the  assumption,  advanced  in 
certain  cases  by  Germany,  that  the  naturalized  citizen  intended  by 
his  emigration  to  evade  military  service,  and  therefore  was  properly 
subject  to  expulsion.^ 

The  most  numerous  cases  arise  because  of  the  unduly  oppressive 
exercise  of  the  power  of  expulsion.  It  is  fundamental  that  the  measure 
should  be  confined  to  its  direct  object,  getting  rid  of  the  undesirable 
foreigner.  All  unnecessary  harshness,  therefore,  is  considered  a  jus- 
tification for  a  claim.     Even  where  an  expulsion  is  admitted  to  be 

Olney  in  For.  Rel..  1«95,  II,  778.  See  also  Santangelo  (U.  S.)  v.  Mexico,  April  11, 
1839,  Moore's  Arb  ^33.3;  Atocha  v.  U.  S.,  8  Ct.  CI.  427. 

1  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Baker,  min.  to  Nicaragua,  October  30,  1894, 
For.  Rel.,  1894,  App.  I,  351-352,  quoted  also  in  Moore's  Dig.  IV,  100. 

*  Expulsion  case  of  Gustav  Wolf  Louis  Fischer,  For.  Rel.,  1900,  pp.  16-28. 

» For.  Rel.,  1901,  p.  158;  see  also  For.  Rel.,  1902,  pp.  457-459. 


60  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

justifiable,  it  should  be  effected  with  as  little  injury  to  the  individual 
and  his  property  interests  as  is  compatible  with  the  safety  and  inter- 
ests of  the  country  which  expels  him.  Secretary  of  State  Olney 
expressed  this  principle  as  follows: 

"The  expulsion  of  a  foreigner  is  justifiable  only  when  his  presence  is 
detrimental  to  the  welfare  of  the  State,  and  .  .  .  when  expulsion  is 
resorted  to  as  an  extreme  police  measure  it  is  to  be  accomplished  with 
duo  regard  to  the  convenience  and  property  interests  of  the  person  ex- 
pelled." 1 

So,  the  expulsion  by  Turkey  of  Armenians,  naturalized  citizens  of  the 
United  States,  was  confined  through  diplomatic  interposition  by  the 
United  States  to  mere  removal  from  Turkish  territory,  and  an  ex- 
cessive incidental  imprisonment  and  other  oppression  which  had  been 
practiced  by  Turkey  as  a  punishment  for  their  unauthorized  naturali- 
zation abroad  was  abandoned.^ 

The  principle  that  an  expulsion  must  be  carried  out  in  a  manner 
least  injurious  to  the  person  affected  has  been  enunciated  on  several 
occasions  by  international  tribunals.  Thus,  summary  expulsions,  by 
which  individuals  were  compelled  to  abandon  their  property,  sub- 
jecting it  to  pillage  and  destruction,^  or  by  which  they  were  forced 
to  sell  it  at  a  sacrifice,''  or  by  which  they  were  subjected  to  unnecessary 
indignities,  harshness  or  oppression,^  have  all  been  considered  by  inter- 
national commissions  as  just  grounds  for  awards. 

'  Hollander  case  v.  Guatemala,  For.  Rel.,  1895,  II,  776.  This  instruction  of  Mr. 
Olney  to  Mr.  Young,  Jan.  30,  1896  contains  quotations  from  Rolin-Jacquemyns,  von 
Bar,  Bluntschli  and  Calvo  to  the  effect  that  harsh  or  arbitrary  expulsion  affords 
good  ground  for  a  diplomatic  claim.  Hollander  was  summarily  expelled,  was  not 
permitted  to  see  his  family  or  make  any  business  arrangements.  He  was  later  per- 
ir)itted  to  return.  In  the  Scandella  case  v.  Venezuela  in  1898  Scandella  was  sum- 
marily arrested,  thrown  into  prison,  denied  communication  with  his  family  and 
friends,  and  placed  on  a  steamer,  leaving  his  family  without  funds,  and  his  property 
subject  to  destruction  and  theft.  (For.  Rel.,  1898,  pp.  1137-1148.)  See  expulsions 
from  Cuba,  Mr.  Olney  to  Mr.  de  L6me,  Sept.  27,  1895,  II,  1229-1231;  Expulsion  of 
Loewi  from  Haiti,  1896,  For.  Rel.,  1896,  pp.  382-386. 

2  See  For.  Rel.,  1893,  p.  683  et  seq. 

3  Gardiner  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  opin.  269  (not  in  Moore). 

*  Jobson  (U.  S.)  V.  Mexico,  Mar.  3,  1849,  opin.  553  (not  in  Moore);  Gowen  and 
Copeland  (U.  S.)  v.  Venezuela,  D(>c.  5,  1885,  Moore's  Arb.  3354-3359. 

» Maal  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  915;  Boffolo  (Italy)  v. 


IN   TIME   OF    WAR  61 

An  expulsion  founded  upon  a  special  discrimination  against  an 
alien,  on  account  of  his  nationality,  race  or  creed  may  be  and  has 
often  been  considered  an  unfriendly  act  to  his  national  government, 
and  has  given  rise  to  diplomatic  claims.^ 

§  32.  In  Time  of  War. 

The  outbreak  of  war  makes  alien  enemies  of  the  respective  subjects 
of  the  belligerents.  International  law  authorizes  the  state  to  expel 
from  its  territory  all  or  any  of  the  subjects  of  its  enemy. ^  No  other 
reason  than  the  existence  of  the  war  need  be  given.'  Municipal 
statutes  in  Great  Britain  and  the  United  States  have  confirmed  this 
right  of  expulsion  in  time  of  war,  and  give  the  President  or  Parlia- 
ment the  power  to  declare  the  conditions  under  which  it  shall  be 
exercised."^  While  formerly  such  expulsions  en  masse  were  common, 
they  have  been  but  rarely  resorted  to  in  recent  times.  Thus,  in  the 
Crimean  War  in  1854,  Russia  permitted  French  and  British  subjects 
to  continue  peaceably  to  reside;  Italy  similarlj'-  extended  this  privilege 
to  Austrian  subjects  in  the  Italian  War  of  Liberation  of  1859  and  to 
Turkish  subjects  in  the  Turko-Italian  war  of  1912;  China  and  Japan 
extended  it  respectively  in  the  Chino-Japanese  War  of  1894,  as  did 
the  United  States  and  Spain  respectively  in  the  Spanish-American 
War  of  1898,  and  Japan  again  in  the  Russo-Japanese  War  of  1904. 
In  the  present  European  War,  alien  enemies  have  in  general  been 
permitted  to  remain,  under  various  measures  of  surveillance. 

On  the  other  hand,  France  considered  it  necessary  to  expel  German 
subjects  during  the  Franco-Prussian  War  of  1870,  Turkey,  to  expel 

Netherlands,  Feb.  13,  1903,  Ralston,  702.  See  also  Jaurett  (U.  S.)  v.  Venezuela, 
Sen.  Doc.  413,  60th  Cong.  1st  sess.,  20  et  seq.,  559  et  seq.  (settled  by  agreement  of 
Feb.  13,  1909,  For.  Rel.,  1909,  629). 

1  See  Mr.  Uhl,  Act'g  Sec'y  of  State,  to  Mr.  Terrell,  Dec.  7,  1893,  For.  Rel.,  1893,  p. 
707.    See  also  the  diplomatic  correspondence  quoted  in  Moore's  Dig.  IV,  109. 

*  Hall,  op.  cit.,  6th  ed.,  383-388.  The  right  of  expulsion  e7i  masse  is  supported  by 
Diena  (Principi,  468),  Nys  (III,  105)  and  Catellani  (Condizioni  e  effetti  giuridica 
deUo  stato  di  guerra.  Venice,  1906,  p.  61).  Fiore  considers  the  measure  as  opposed 
to  modern  principles  of  international  law.    Dir.  int.  cod.  (4th  ed.),  §  1142. 

'  De  Rijon  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  3348. 

*  See  Revised  Statutes  of  the  United  States,  §§  4067-4070.  See  also  Moore's  Dig. 
IV,  138;  Brown  v.  U.  S.,  8  Crunch,  110,  127. 


62  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

Greek  subjects  in  the  War  of  1897  and  Italian  subjects  in  the  war 
of  1912,  the  Boers,  to  expel  British  subjects  from  the  Transvaal  in 
1900,  and  the  Russians,  to  expel  the  Japanese  from  certain  provinces 
in  1904.^  In  the  present  European  War,  it  seems  that  Russia  has 
ordered  the  expulsion  of  all  Turks,  and  Germans  and  Austrians  have 
been  expelled  from  French  Morocco.  A  limited  time  is  usually  granted 
for  the  departure  of  enemy  individuals  in  the  territory  and  of  enemy 
merchant  vessels  in  the  ports  of  a  belligerent.^  The  permission  to 
remain  or  the  order  of  expulsion,  with  the  accompanying  conditions, 
are  usually  published  in  the  form  of  a  proclamation. 

With  the  progress  of  civilization,  there  is  an  increasing  tendency 
to  confine  the  effects  of  an  armed  conflict  within  as  narrow  limits  as 
possible  and  to  mitigate  the  rigorous  maintenance  of  the  principle 
that  subjects  of  an  enemy  state  may  be  treated  as  enemies,  in  favor 
of  the  unarmed  civilian  alien,  whose  person  and  property  are  respected, 
with  certain  variously  stated  exceptions,  as  before  the  war.  This 
rule  is  now  largely  confirmed  by  treaties  by  which  merchants  and 
traders  are  allowed  a  limited  period  to  wind  up  their  affairs  and  de- 
part, and  those  engaged  in  innocent  occupations  are  permitted  to 
remain.^ 

§33.  Extradition. 

Extradition  is  closely  connected  with  expulsion.  Independently  of 
treaty  stipulations,  there  is  no  duty  incumbent  upon  a  state  within 
whose  territory  the  fugitive  may  be  found  to  deliver  him  to  a  state 
in  whose  territory  the  alleged  crime  has  been  committed.  In  the 
interests  of  modern  civiUzation,  however,  states  have  voluntarily 
limited  their  right  of  asylum  by  agreeing  by  treaty  to  deliver  up  such 
individuals  as  have  offended  the  criminal  law  of  another  state.    The 

^  See  discussion  in  Martini,  op.  cil.,  87  et  seq.,  and  G.  Tambaro  in  1  Jahrbuch  des 
Volkerrechts,  740-741. 

'^  Higgins,  A.  Pearce,  The  Hague  peace  conferences,  1909,  pp.  294-307.  In  the  ab- 
sence of  treaty  or  proclamation,  a  belligerent  has  a  technical  right  to  seize  enemy 
ships  in  his  ports  on  the  outbreak  of  war.  See  Russell  T.  Mount's  account  of  recent 
practice  in  15  Columbia  L.  Rev.  (1915),  318-323. 

*  See,  e.  g.,  the  typical  provisions  of  Art.  XXI  of  the  treaty  between  the  United 
States  and  Italy,  Feb.  26,  1871,  Malloy,  Treaties,  etc.,  1910,  I,  975,  quoted  infra, 
p.  109. 


POLITICAL  RIGHTS   AND   DUTIES  63 

subject  is  also  largely  regulated  by  municipal  extradition  laws.  The 
categories  of  crimes  for  which  extradition  will  lie  are  expressly  laid 
down  in  the  treaties.^ 

POLITICAL  RIGHTS  AND   DUTIES 

§  34.  These  not  usually  ascribed  to  Aliens. 

The  rights  and  disabilities  of  aliens  are  usually  discussed  from  the 
point  of  view  of  their  political  or  their  civil  character.  Political  rights 
are  such  as  involve  a  share  in  the  control  and  an  active  participa- 
tion in  the  life  and  operation  of  the  state.  As  has  already  been  seen, 
they  are  usually  denied  to  aliens.  In  the  United  States,  exceptions 
have  been  made,  based  on  residence,  and  this  tendency  appears  to 
be  growing.  Domiciled  aliens  in  a  number  of  the  South  American 
states  are  granted  limited  political  rights,  and  an  extension  of  this 
policy  would  be  only  a  measure  of  self-defense,  inasmuch  as  the  failure 
to  grant  domiciled  aliens  political  rights  has  given  foreign  countries  some 
ostensible,  if  not  actual,  title  to  diplomatic  interposition,  for  the  alien's 
inability  to  exercise  political  rights  deprives  him  of  an  important 
remedy  against  maladministration. 

There  is  some  difference  of  opinion  as  to  what  is  included  among 
political  rights;  for  example,  Liszt  ^  considers  the  right  of  association, 
freedom  of  the  press,  and  even  the  right  of  residence,  as  political 
rights.  The  tendency,  however,  is  to  narrow  the  term  to  include 
merely  the  right  to  vote  and  hold  office  and  the  rights  (or  obligations) 
incident  to  citizenship,  such  as  military  service,  jury  service,  and  the 
competency  to  fill  certain  public  offices,  for  example,  in  some  of  the 
European  states,  to  act  as  judges,  notaries  public,  advocates,  and  in 
similar  offices.^ 

In  certain  countries,  particularly  some  of  those  on  the  American 
continent,  aliens  are  excluded  only  from  the  most  important  public 
offices.  The  acceptance  by  an  alien  of  a  public  office  in  these  states 
without  the  consent  of  his  national  state  often  involves  the  loss  of 

*  Oppenheim,  op.  cit.  I,  403  et  seq.;  Bonfils-Fauchille,  Manuel  de  droit  int.  pub., 
6th  ed.,  Paris,  1912,  p.  282  et  seq. 

2  Liszt,  Volkerrecht,  Berlin,  1912  (9th  ed.),  193. 

*  Cockburn,  Nationahty,  London,  1869,  pp.  158,  159,  163. 


64  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

citizenship  or  some  of  its  incidental  rights,  e.  g.,  diplomatic  protec- 
tion.^ 

§  35.  Military  Service. 

The  denial  of  political  rights  involves  an  exemption  from  political 
duties.  Being  without  the  privileges,  the  alien  is  correspondingly  ex- 
empt from  the  responsibilities  attaching  to  membership  in  the  political 
community.  Thus,  a  long  series  of  treaties  now  in  force  exempts  the 
alien  from  compulsory  military  service  and  from  forced  loans  or 
military  requisitions,  and  in  some  cases  this  exemption  extends  to 
service  in  the  national  guard  or  militia.^  The  treaties  of  the  United 
States  with  some  countries  exempt  only  consular  officers  from  com- 
pulsory military  service. 

Two  treaties,  typical  of  those  concluded  by  the  United  States  may 
be  quoted.  The  treaty  of  July  27,  1853,  with  the  Argentine  Republic 
(art.  10)  reads  as  follows: 

"The  citizens  of  the  United  States  residing  in  the  Argentine  Confed- 
eration, and  the  citizens  of  the  Argentine  Confederation  residing  in  the 
United  States,  shall  be  exempted  from  all  compulsory  military  service 
whatsoever,  whether  by  sea  or  by  land,  and  from  all  forced  loans,  req- 
uisitions or  military  exactions."  * 

The  treaty  with  Italy  (art.  3)  reads: 

"They  [citizens]  shall  ...  be  exempt  from  compulsory  military  serv- 
ice, either  on  land  or  sea,  in  the  regular  forces,  or  in  the  national  guard, 
or  in  the  militia."  * 

Whether,  in  the  absence  of  treaty,  domiciled  aliens  enjoy  such  an 
exemption  is  somewhat  doubtful.  The  Norwegian  military  law  of 
1857  required  military  service  from  aliens  who  had  acquired  a  "fast 
domicilium."  A  British  subject,  having  demanded  the  protection 
of  Great  Britain  against  this  law  was  directed  to  go  to  the  courts, 

'  Infra,  §  380. 

^  Hall,  op.  cil.,  205;  Despagnet,  op.  cit.,  §  343.  Treaties  of  the  U.  S.  providing  for 
such  exemptions  are  cited  by  H.  T.  Kingsbury  in  Proc.  Amer.  Soc.  of  Int.  Law,  1911, 
218-222. 

*  Malloy,  Treaties,  etc.,  1910, 1,  23.  See  also  arts.  8  and  9  of  the  treaty  of  August  1, 
1911  between  Great  Britain  and  Bolivia,  Treaty  series  1912,  No.  223. 

*  Malloy,  Treaties,  etc.,  1910,  I,  970. 


MILITARY   SERVICE  65 

for  in  the  absence  of  treaty  Great  Britain  could  ask  for  exemption  only 
on  principles  of  equity,  on  the  ground  that  Norwegians  were  not 
subject  to  military  service  in  England.^  The  legality  of  the  action  of 
France  in  blockading  the  La  Plata  in  1838  and  of  France  and  England 
in  blockading  Buenos  Ayres  in  1846  because  the  Argentine  Republic 
had  compelled  subjects  of  these  countries  domiciled  over  three  years 
in  Argentine  to  do  military  service,  is  questionable.-  The  United 
States  and  Great  Britain  have  conceded  extensive  rights  to  foreign 
governments  in  enlisting  their  resident  citizens  or  subjects  for  all 
purposes  of  local  defense  or  police  duty.  Thus  Secretary  of  State 
Seward  said: 

"This  government  is  not  disposed  to  draw  in  question  the  right  of  a 
nation  in  a  case  of  extreme  necessity  to  enroll  in  the  military  forces  all 
persons  within  its  territories,  whether  citizens  or  domiciled  foreigners."  * 

Secretary  of  State  Fish  in  1869  assumed  the  position  that 

"  this  Government,  though  waiving  the  exercise  of  the  right  to  require 
military  service  from  all  residents,  has  never  surrendered  that  right  and 
can  not  object  if  other  governments  insist  upon  it."  * 

The  law  officers  of  the  Crown  rendered  an  opinion  in  1894  to  the  effect 
that,  by  the  general  rule,  an  exemption  from  compulsory  military 
service  did  not  exist,  but  that  treaties  had  largely  established  it.' 

These  admissions,  however,  cannot  be  construed  as  authorizing 
compulsory  service  in  the  regular  army  of  a  nation  (i.  e.,  what  might  be 
called  political  service),  but  only  enrollment  for  police  purposes  and 

1  Mr.  Crowe  to  Mr.  Foreman,  Report  of  the  Royal  Commissioners  on  naturaliza- 
tion and  allegiance,  1869,  Appendix,  p.  71. 

2  Fiore,  Nouveau  droit  int.  pub.,  §  647. 

'  Mr.  Seward,  Sec'y  of  State,  to  Mr.  White,  July  10,  1868,  Moore's  Big.  IV,  57. 

*  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Redmond,  Apr.  3,  1869,  Moore's  Dig.  IV,  57. 

5  Mr.  Bayard  to  Mr.  Gresham,  Sec'y  of  State,  July  19,  1894,  For.  Rel.,  1894,  p.  25.5. 

The  admission  by  Great  Britain,  during  the  Civil  War,  that  those  British  sub- 
jects who  had  declared  their  intention  of  becoming  American  citizens  and  had  e.x- 
ercised  the  elective  franchise,  were  properly  subject  to  military  duty,  if  they  re- 
mained resident,  cannot  be  construed  as  a  consent  to  the  military  service  of  British 
subjects,  but  rather  as  an  acknowledgment  that  by  exercising  political  rights  and 
becoming  at  least  inchoate  American  citizens,  they  had  subjected  themselves  to  the 
political  obUgation  of  military  service. 


66  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS    ABROAD 

local  protection,  especially  in  times  of  sudden  emergency.  Secretary 
of  State  Bayard  expressed  a  reasonable  view  when  he  declared: 

"It  is  well  settled  by  international  law  that  foreigners  temporarily 
resident  in  a  country  cannot  be  compelled  to  enter  into  its  permanent 
military  service.  It  is  true  that  in  times  of  social  disturbance  or  of  in- 
vasion their  services  in  police  or  home  guards  may  be  exacted,  and  that 
they  may  be  required  to  take  up  arms  to  help  in  the  defense  of  their 
place  of  residence  against  the  invasion  of  savages,  pirates,  etc.,  as  a 
means  of  warding  off  some  great  public  calamity  by  which  all  would 
suffer  indiscriminately.  The  test  in  each  case,  as  to  whether  a  foreigner 
can  properly  be  enrolled  against  his  will,  is  that  of  necessity.  Unless 
social  order  and  immunity  from  attack  by  uncivilized  tribes  cannot  be 
secured  except  through  the  enrollment  of  such  a  force,  a  nation  has  no 
right  to  call  upon  foreigners  for  assistance  against  their  will."  ^ 

So  Lord  Lyons  during  the  Civil  War  was  instructed  by  the  British 
government  that 

"there  is  no  rule  or  principle  of  international  law  which  prohibits  the 
government  of  any  country  from  requiring  aliens  resident  within  its 
territories,  to  serve  in  the  militia  or  police  of  the  country,  or  to  contribute 
to  the  support  of  such  establishment."  2 

As  a  general  rule,  nevertheless,  except  in  cases  of  dual  nationaUty 
or  similar  possibility  of  claim,  a  demand  by  the  home  government  of 
an  alien  compelled  to  do  miUtary  service  results  in  his  release  from 
service,  on  grounds  of  comity,  if  not  of  law.  In  one  case  at  least, 
the  United  States  was  unwilling  to  submit  the  question  of  such  com- 
pulsory service  of  an  American  citizen  in  Mexico,  to  the  Mexican 
courts,  but  demanded  an  immediate  release.^  The  French  interven- 
tions in  the  Argentine,  above  mentioned,  whether  just  or  unjust,  have 
often  been  cited  as  international  precedents  on  the  subject.     On  a 

'  j\Ir.  Bayard,  Sec'y  of  State,  to  Mr.  Bell,  min.  to  the  Netherlands,  Feb.  3,  1888, 
For.  Rel.,  1888,  II,  1325,  quoted  also  in  Moore's  Dig.  IV,  62;  Mr.  Fish,  Sec'y  of  State, 
to  Mr.  WiUiamson,  June  13,  1876,  Moore's  Dig.  IV,  59.  Mr.  Fish  sanctioned  the 
compulsory  service  of  a  resident  alien  to  defend  a  town  during  a  siege.  Mr.  Fish 
to  Mr.  Williamson,  July  24,  1874,  Moore's  Dig.  IV,  58.  Mr.  Wilson,  Act'g  Sec'y  of 
State,  to  Charg6  Hibben,  May  19,  1909,  For.  Rel.,  1909,  p.  222. 

'  Quoted  in  instruction  of  Mr.  Davis,  Ass't.  Sec'y  of  State,  to  Mr.  Faxon,  Feb.  17, 
1870,  Moore's  Dig.  IV,  57.  See  also  Hall,  op.  cit.,  206;  Fiore,  op.  cit.,  §  649;  Blunt- 
Kchli,  Droit  int.  codifi6,  §  391. 

"  Mr.  Evarts,  Sec'y  of  State,  to  Mr.  Morgan,  Dec.  8,  1880,  For.  Rel,  1881,  p.  751, 
quoted  also  in  Moore's  Dig.  IV,  60. 


MILITARY   SERVICE  67 

later  occasion,  Belgium,  heeding  the  protests  of  certain  Powers,  re- 
linquished the  enforcement  of  its  act  of  1907  which  imposed  service 
in  the  civic  guard  upon  aliens.^ 

At  the  second  Hague  peace  conference  animated  discussions  took 
place  as  to  the  right  of  a  belligerent  to  require  military  service  of 
neutral  residents.  While  some  favored  an  absolute  prohibition,  the 
validity  of  the  municipal  legislation  of  some  states,  which  on  occasion 
requires  such  service,  was  recognized.  No  resolutions  on  the  subject 
were  adopted,  but  the  Conference  expressed  the  "voeu"  or  solemn  wish 
"that  the  High  Contracting  Powers  shall  seek  to  establish,  by  agree- 
ments between  them,  uniform  contractual  provisions  determining  the 
relations,  in  respect  of  military  obligations,  of  each  state  with  the 
foreigners  established  in  its  territory."  ^ 

While  many  states  by  municipal  law  permit  the  voluntary  service 
of  aliens,  which  in  itself  raises  no  international  question,  some  states, 
for  example,  France  and  Germany,  expressly  exempt  foreigners  from 
military  service.'  An  exceptional  and  unusual  arrangement  is  the 
stipulation  of  the  treaty  of  January  17,  1862  between  Spain  and 
France  (art.  5)  by  which  each  country  agrees  to  incorporate  into  its 
army  the  nationals  of  the  other,  resident  in  its  territory,  who  have  not 
completed  their  military  obligations  in  their  own  country.^ 

In  the  absence  of  treaty,  there  appears  to  be  no  legal  reason  why 
the  exemption  from  military  service  cannot  be  commutated  or  com- 
pensated by  a  tax.  Switzerland,  by  its  law  of  June  28,  1878,  imposed 
such  a  tax  on  foreigners  established  in  Switzerland,  unless  they  are 
exempted  by  treaties  or  belong  to  a  state  in  which  Swiss  citizens  are 
liable  neither  to  military  service  nor  to  a  commutation  in  money. 
The  treaty  of  November  25,  1850,  did  not  exempt  United  States  citi- 

1  25  Clunet  (1898),  204  and  814;  Bonfils,  op.  cit.,  §  445,  footnote.  Numerous 
treaties  confirm  this  exemption  and  Despagnet  even  believes  that  it  exists  apart 
from  treaty  {op.  cit.,  §  343). 

2  For  a  brief  account  of  the  discussions  see  Scott's  Hague  peace  conferences  of 
1899  and  1907,  Baltimore,  1909,  pp.  550-555,  and  v.  Ill  of  the  official  report  "  La 
deuxieme  conference  Internationale  de  la  paix,"  179  et  seq.,  and  v.  I,  125  et  seq.  See 
also  Westlake,  op.  cit.  II,  285. 

'  Citations  in  8  R.  D.  I.  prive  (1912),  841. 
*  14  Clunet  (1887),  326;  12  ibid.  (1885),  92. 


68  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

zens  from  this  tax,  although  almost  all  the  countries  of  Europe  have 
by  treaty  secured  exemption  from  it  for  their  subjects.  After  some 
diplomatic  negotiation,  the  Swiss  Federal  Council  adopted  a  resolu- 
tion that  the  tax  was  only  to  be  levied  upon  Swiss  citizens  who  were 
residing  in  or  had  returned  from  the  United  States  (Switzerland  does 
not  recognize  the  unpermitted  foreign  naturalization  of  her  citizens) 
and  not  upon  citizens  of  the  United  States.^ 

The  treaty  with  Switzerland,  by  which  citizens  of  the  United  States 
are  exempted  from  personal  service  only,  brings  up  the  distinctions 
between  personal  miUtary  service  and  the  use  of  the  alien's  property 
for  mihtary  purposes.  Unless  treaty  provisions  expressly  exempt  the 
property  of  the  alien  from  all  use  for  military  purposes,  there  is  no 
vaUd  reason  why  his  property  should  not  furnish  the  same  requisitions 
and  be  subject  to  the  same  servitudes  as  that  of  the  native  inhabitant. 
In  the  countries  of  Europe,  it  is  usual  to  require  food  and  fodder  from 
inhabitants  under  payment  of  compensation,  and  to  demand  from  all 
landowners  shelter  and  quarter  for  troops  and  horses  during  ma- 
noeuvers,  without  compensation,  as  a  pubUc  servitude.  In  the  absence 
of  a  treaty  or  unjust  discrimination  against  a  domiciled  alien  as  such, 
it  does  not  seem  that  foreign  governments  in  such  cases  have  on 
principle  any  cause  for  complaint.- 

However  willing  Great  Britain  and  the  United  States  have  been, 
at  times,  to  concede  the  justice  of  the  claim  of  foreign  countries  to 
require  a  limited  military  service  of  domiciled  aliens,  they  have 
vigorously  insisted  on  the  right  of  their  subjects  and  citizens  to  leave 
the  country  freely  as  an  alternative  to  such  service.  Thus,  Secre- 
tary of  State  Madison  in  1803,  declared: 

"The  most  inviolable  and  most  obvious  right  of  an  alien  resident  is 
that  of  withdrawing  himself  from  a  limited  and  transitory  allegiance 
having  no  other  foundation  than  his  voluntary  residence  itself."  ' 

The  claim  of  the  United  States  during  the  Civil  War  to  require  mili- 

'  For.  Rcl.,  1894,  pp.  678-682.    See  paraphrase  in  Moore's  Dig.  IV,  65-66. 

^  L<!s  d'trangers  en  France  et  les  requisitions  militaires,  8  R.  D.  I.  priv6  (1912), 
S40-845. 

'  Mr.  Madison,  Sec'y  of  State,  to  Mr.  Pichon,  French  charge,  May  20,  1803, 
Moore's  Dig.  IV,  52. 


CIVIL   RIGHTS  69 

tary  service  of  resident  aliens  who  had  declared  their  intention  of 
becoming  citizens  and  had  exercised  the  voting  privilege  was  not  con- 
tested after  the  option  was  extended  of  leaving  the  country  within 
sixty-five  days.  ^ 

Many  states  by  statute  prohibit  their  subjects  from  taking  military 
service  abroad,  under  pain  of  loss  of  their  nationality  or  other  penal- 
ties. In  other  states,  such  service  is  prohibited  only  under  the  neu- 
trality acts,  according  to  which  subjects  are  prohibited  to  take  service 
in  any  foreign  state  against  a  state  with  which  their  own  is  at  peace. ^ 

An  important  chapter  in  the  diplomatic  correspondence  of  the  United 
States  is  concerned  with  the  attempts  to  secure  release  from  the 
performance  of  military  duty  on  the  part  of  naturalized  American 
citizens  returning  to  the  country  of  their  original  allegiance  which 
either  still  claims  the  emigrant  as  its  subject  or  else  holds  him  for 
evasion  of  military  duty  by  emigration  and  naturalization  abroad. 
This  matter  will  receive  full  consideration  hereafter.^ 

It  has  already  been  observed  that  aliens  are  deprived  of  practically 
all  other  rights  and  relieved  of  duties  having  a  political  or  public 
character  and  involving  an  oath  of  allegiance  to  the  state,  such  as  the 
competency  to  act  as  judges,  advocates,  jurymen,  and  in  similar 
functions,  although  Secretary  of  State  Fish  once  stated  that  he  saw 
no  reason  why  domiciled  foreigners  should  not  be  required  to  dis- 
charge such  civic  duties  as  service  upon  juries,  or  in  a  municipal 
fire  department,  and  other  duties  of  like  character.^ 

CIVIL   RIGHTS 

§  36.  Meaning  of  the  Term. 

The  term  "civil  rights"  is  one  of  most  uncertain  definition.     A 

1  Act  of  Congress,  March  3,  1863.  See  Halleck,  International  law,  1908  ed.,  I, 
613, footnote. 

*  See,  for  example,  British  Foreign  Enlistment  Act,  33  &  34  Vict.  c.  90;  U.  S.  Rev. 
Stat.,  §  5281  et  seq.    See  also  Halleck,  op.  cit.,  612. 

'  Infra,  §  235  et  seq. 

*  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Wing,  April  6,  1871,  Moore's  Dig.  IV,  58.  See 
also  Rohn,  Droit  int.  prive,  142.  In  a  recent  treaty  between  Great  Britain  and  Bo- 
livia it  if.  expressly  provided  that  municipal  functions  may  be  discharged  by  the 
aUen  without  loss  of  his  nationality.  Art.  8  of  treaty  of  August  1,  1911,  Treaty  series 
1912,  No.  223. 


70  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

number  of  continental  publicists  distinguish  between  those  civil  rights 
which  belong  to  all  men  regardless  of  nationality  (derived  from  natural 
law)  or  universally  acknowledged  as  the  common  law  of  civilized 
peoples  (the  jus  gentium  of  the  Romans),  and  those  which  exist  only 
by  express  provision  of  the  legislature.^  This  distinction  is  now  ad- 
mitted to  be  not  only  theoretical  and  difficult  of  application,  but 
fallacious,  ^  and  to  the  Anglo-American  mind  appears  useless.  Other 
writers  consider  as  civil  rights  those  only  which  have  been  granted 
by  the  legislature,  such  other  rights  as  are  enjoyed  by  aliens  being 
regarded  as  natural  and  not  civil  rights.  Again,  the  term  has  been 
interpreted  as  meaning  private  rights  or  those  sanctioned  by  private 
law,  regulating  the  legal  relations  between  individual  and  individual, 
as  distinguished  from  public  rights  or  those  governed  by  public  law, 
regulating  the  reciprocal  relations  between  individuals  and  the  state  or 
of  states  among  themselves.  In  its  broadest  sense  the  term  includes 
all  rights  not  poUtical.^  The  distinction  between  civil  and  political 
rights  being  unclear,  many  authors  have  adopted  a  classification  of 
civil  rights  into  pubUc  and  private,  meaning  by  the  former  term  those 
non-political  rights  and  liberties  which  involve  a  more  direct  relation 
between  the  individual  and  the  state  and  are  protected  by  public 
law  (such  as  the  right  of  individual  liberty  and  security,  liberty  of 
conscience  and  of  worship,  etc.),  and  by  the  latter  term  the  rights  of 
individuals  among  themselves,  which  are  protected  by  the  private  law 
of  the  state.  For  purposes  of  discussion,  this  is  not  an  inconvenient 
arrangement. 

>  This  distinction  is  made  mainly  by  the  French  publicists  who  rely  on  the  au- 
thority of  Pothier  and  Domat.  See  Pradier-Fod6r6,  op.  cit.,  §  1636.  On  the  confu- 
sion in  meaning  of  the  term  "civil  rights,"  see  Asser-Rivier,  Elements  de  dr.  int. 
prive,  38  and  Rolin,  op.  cit.,  139-140.  See  also  Bar,  op.  cit.,  212.  We  have  emphasized 
the  continental  position  of  aliens  rather  than  the  Anglo-American,  because  our  inter- 
est is  princifjally  in  the  position  of  Americans  abroad,  a  question  of  more  frequent 
practical  importance  in  countries  of  the  civil  law  than  in  those  of  the  common  law. 
An  extended  discussion  of  the  principles  governing  alien  legislation  in  continental 
countries,  with  some  account  of  the  legislation  in  each  country,  will  be  found  in  Weiss, 
Droit  international  priv6  (2nd  cd.),  II,  574  et  seq. 

*  Laurent,  Droit  civil  international,  Bruxelles,  1880,  II,  17,  21.  See  also  Pradier- 
Fod6r6,  op.  cit.,  §  1637. 

'  Annuairc  of  the  Institute  of  Int.  Law,  V,  41-43;  56-57. 


TYPES   OF   LEGISLATIVE    SYSTEMS  71 

§  37.  Types  of  Legislative  Systems. 

Legislation  concerning  aliens  and  the  enjoyment  of  rights  by  them 
may  be  divided  into  three  categories:  first,  that  which  is  character- 
ized by  no  definite  principle  and  retains  certain  grave  incapacities, 
e.  g.,  the  denial  of  the  right  to  own  real  estate,  which  still  exists  in  the 
legislation  of  some  nineteen  states  of  the  United  States  and  in  various 
European  countries,  and  other  arbitrary  disabilities.  In  this  class 
belongs  the  legislation  of  Great  Britain  and  the  United  States  generally, 
and  of  Denmark,  Sweden,  Roumania  and  Russia. 

The  second  type  of  legislation  is  that  based  on  the  principle  of 
reciprocity.  This  is  divided  into  two  classes — diplomatic  reciprocity 
which  is  the  dominating  principle  of  the  French  law  and  has  been 
followed  by  Belgium,  Luxemburg  (arts.  11  and  13  of  these  codes) 
and  Greece  (arts.  13  and  16),  and  legislative  reciprocity,  which  is  the 
principle  adopted  by  Germany,  Austria  and  Servia. 

Article  11  of  the  French  Civil  Code  provides  that  "aliens  shall 
enjoy  in  France  the  same  civil  rights  which  are  or  shall  be  accorded 
to  Frenchmen  by  the  treaties  of  the  nation  to  which  that  alien  be- 
longs." Hence  the  name  diplomatic  reciprocity.  The  countries 
adopting  this  principle  expressly  recognize  two  classes  of  aliens,  the 
ordinary  alien,  to  whom  the  provisions  of  the  above  article  apply, 
and  privileged  aliens,  or  those  admitted  to  domicil,  who  enjoy  the 
same  civil  rights  as  nationals.  This  admission  to  domicil  is  a  pre- 
liminary step  to  naturalization  comparable  with  our  declaration  of  in- 
tention. It  is  merely  a  provisional  grant  of  rights  which  would  be 
subsequently  enjoyed  by  the  individual  as  a  citizen,  and  is  valid  only 
so  long  as  actual  domicil  in  the  country  continues.  The  question  has 
been  raised  whether  the  alien  in  France  can  enjoy  rights  which  his 
national  law  denies  him.     Fillet  ^  concludes  that  he  cannot,  unless 

(1)  the  act  is  completed  in  and  has  its  effects  solely  in  France;  or 

(2)  the  act  is  based  on  public  policy. 

The  principle  of  legislative  reciprocity  accords  aliens  those  rights 
which  their  country  by  legislation  grants  to  foreigners  generally 
or  to  the  subjects  of  the  country  in  question.  Austria  formerly 
adopted  two  categories  of  legislative  reciprocity,  called  material  or 

» Fillet,  op.  ciL,  223. 


72  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

relative  if  granted  by  the  other  country  to  Austrians,  and  formal  or 
absolute,  if  granted  to  foreigners  and  nationals  alike.  ^  Countries 
adopting  the  principle  of  legislative  reciprocity  usually  grant  foreign- 
ers the  same  private  rights  as  their  subjects,  reserving  however  the 
power  to  apply  retorsion  to  the  nationals  of  countries  where  aliens 
generally  or  their  subjects  alone  are  handicapped  by  the  particular 
disabilit}^  in  question.  The  burden  of  proof  is  on  the  person  alleging 
the  disability,  and  not  on  the  alien,  in  the  first  instance,  to  prove  its 
absence  in  his  national  municipal  legislation.  The  United  States  in 
the  grant  of  various  rights  to  aliens  adopts  the  test  of  reciprocity. 
This  test  is  contained  in  its  copyright  laws,  in  the  right  of  aliens  to 
sue  the  United  States  in  the  Court  of  Claims,  and  in  other  matters. 

In  modern  legislation  the  principle  of  reciprocity  was  first  applied 
by  France  as  a  restriction  upon  the  liberal  rights  which  had  been 
granted  to  foreigners  by  the  legislation  of  the  revolutionaiy  period. 
Other  countries  having  failed  to  grant  Frenchmen  such  liberal  rights, 
the  civil  code  conditioned  its  grant  of  ci\al  rights  to  aUens  upon  the 
reciprocal  concession  of  such  rights  to  Frenchmen,  guaranteed  by 
treaty,  in  other  states.  The  principle  has  had  a  profound  influence 
upon  the  development  of  the  law  of  aliens.  It  is  condemned  severely 
by  numerous  publicists  as  a  survival  of  the  system  of  reprisals.^ 

The  third  system  of  legislation  governing  aliens,  and  the  one  which 
has  received  most  modern  support,  is  that  of  assimilation  to  nationals, 
or  a  grant  of  equal  rights  in  private  law  to  nationals  and  aliens.  This 
system  was  first  adopted  by  the  Italian  civil  code  of  1865  (art.  3) 
and  has  been  followed  by  Spain,  Netherlands,  Switzerland,  Portugal, 
Norway,  Japan  and  practically  all  the  countries  of  Latin  America. 
It  has  received  the  approval  of  the  Institute  of  International  Law. 
It  provides  that  the  alien  shall  enjoy  the  same  civil  rights  as  the 
national,  but  it  does  not  exclude  the  possibility  of  exceptions,  e.  g., 
in  the  ownership  of  real  property,  or  of  national  vessels.  So  the 
Institute  of  International  Law  added  a  proviso,  "subject  to  the  excep- 
tions formally  estabUshed  by  actual  legislation."  ^ 

'  Vesque  von  Puttlingen,  Die  gcsctzlichc  HchaiKllung  der  Auslander  iu  Oesterreich, 
Vienna,  1842,  §  42.    Norsa  in  G  R.  D.  I.  (1874),  200. 
^  Bar,  op.  cil.,  214-21G  and  authoritiea  there  cited. 
*  Annuaire,  V,  50. 


PUBLIC    RIGHTS  73 

It  will  be  seen,  therefore,  that  classes  one  and  three  tend  to  ap- 
proach each  other.  This  may  also  be  said  of  classes  two  and  three, 
inasmuch  as  the  extension  of  rights  to  aliens  bj^  treaty,  legislation 
and  judicial  construction  has  greatly  restricted  the  number  and  extent 
of  the  disabilities  which  the  principle  of  reciprocity  imposed  upon  the 
alien.  As  a  general  rule  it  may  be  said  that  aliens  now  enjoy  all 
civil  rights  (rights  other  than  political)  which  are  not  expressly  denied 
to  them.^ 

§  38.  Public  Rights. 

It  would  be  difficult  to  draw  up  a  Ust  of  the  civil  rights  which  the 
alien  enjoys.  Indeed,  no  complete  enumeration  of  legal  rights  has  been 
attempted  and  only  those  have  been  defined  which  have  been  at  times 
violated.^  Nevertheless,  it  is  true  that  both  by  customary  and  statu- 
tory law  numerous  rights  have  been  recognized  as  belonging  to  the  alien, 
although  their  remedial  enforcement  is  unnecessary  until  a  threatened 
or  actual  invasion  occurs.  The  attempt  may  therefore  be  made 
to  review  briefly  the  more  general  of  the  civil  rights  usually  granted 
to  the  aUen,  and  for  the  purpose  of  discussion  we  ma}^  begin  with  those 
rights  called  on  the  continent  of  Europe  "public  rights." 

Vague  as  is  the  definition  of  public  rights  and  many  as  are  the  char- 
acteristics which  it  has  in  common  with  private  rights,  the  term  has  in 
general  been  applied  to  those  rights  or  faculties  which  are  enjoyed  by 
the  individual  in  relation  to  society  as  a  whole,  and  which  are  under 
the  direct  protection  of  public  law.  They  embrace  all  the  rights  and 
liberties  incidental  to  the  rights  of  life,  liberty  and  property  and  are 
discussed  by  continental  writers  under  such  heads  as  individual  lib- 
erty, security  of  person  and  property,  the  liberty  of  circulation  and 
emigration,  liberty  of  conscience  and  worship,  freedom  of  the  press, 
freedom  of  association  and  assembly,  the  right  of  petition,  liberty  to 
carry  on  commerce  and  trade,  the  procreation  of  the  race,  etc.  Some 
writers,  like  Weiss,  consider  these  "public  rights"  as  the  rights  of  man. 
This  has  an  unwelcome  natural  law  flavor,  and  may  be  disregarded. 
Inasmuch  as  their  enjoyment  by  nationals  may  be  restricted  and 

*  Laurent,  op.  cit.,  Ill,  §  321. 

*  Robinson,  W.  C,  Elements  of  American  jurisprudence,  Boston,  1900,  §§  429,  430. 


74  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

regulated,  there  is  every  reason  to  acknowledge  that  the  public  se- 
curity and  interests  of  the  state  may  dictate,  in  the  case  of  aliens,  still 
greater  restrictions  and  regulation.^ 

The  right  of  individual  liberty  was  not  always  recognized  in  the 
alien,  as  has  been  noted.  At  the  present  day,  of  course,  he  is  as  free 
as  the  national.  In  the  exercise  of  this  liberty,  the  alien  nevertheless 
remains  subject  to  expulsion  and  extradition  within  the  Umitations 
already  discussed,  and  to  the  local  penal  and  police  laws. 

The  liberty  of  circulation  and  emigration  is  intended  to  give  the 
alien  freedom  to  migrate  where  he  will.  The  right  of  admission  is 
subject  to  the  application  of  the  exclusion  laws,  or  the  payment  of  a 
head  tax.  The  right  of  sojourn  may  be  subjected  to  a  tax  or  to  such 
requirements  as  matriculation  in  a  consulate  ^  or  local  bureau,  the 
possession  of  a  passport  or  certificate  of  citizenship,  or,  as  in  France 
by  the  decree  of  October  2,  1888,  and  the  law  of  August  8,  1893,  a 
declaration  establishing  the  alien's  identity,  nationahty  and  means  of 
existence.^  This  liberty  is  generally  called  in  the  continental  treaties 
the  right  of  establishment,  and  in  treaties  of  the  United  States  and 
Great  Britain,  the  right  of  residence  and  travel.  The  right  is  usually 
confirmed  by  treaties  reading  in  effect  as  follows: 

"The  citizens  and  subjects  of  the  two  High  Contracting  Parties  .  .  . 
shall  have  reciprocally  the  right,  on  conforming  to  the  laws  of  the  coun- 
try, to  enter,  travel  and  reside  in  all  parts  of  their  respective  terri- 
tories .  .  .  and  they  shall  enjoy  in  this  respect,  for  the  protection  of 
their  persons  and  their  property,  the  same  treatment  and  the  same 
rights  as  the  citizens  or  subjects  of  the  country  or  the  citizens  or  subjects 
of  the  most  favored  Nation."  ^ 

'  Rolin,  op.  cit.,  140,  146.  An  extensive  bibliography  of  the  rights  of  aliens  in  prac- 
tically every  civilized  country,  gathered  in  the  course  of  several  years'  research,  is 
printed  in  the  Appendix,  infra. 

^  See,  however,  as  to  a  Peruvian  law  requiring  the  registration  of  U.  S.  citizens, 
Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Buck,  min.  to  Peru,  April  19,  1887,  For.  Rel, 
1887,  p.  932. 

2  French  law  relating  to  sojourn  of  foreigners,  Aug.  8,  1893,  translated  in  For.  Rol., 
1893,  p.  302.  See  restrictions  on  the  right  of  sojourn  discussed  in  Tchernoff,  Protec- 
tion des  nationaux,  428,  432. 

*  Treaty  between  the  U.  S.  and  Spain  of  July  3,  1902,  art.  1,  par.  1,  Malloy,  Treaties, 
etc.,  1910,  II,  1702.  On  the  effect  of  the  "most-favored-nation"  clause,  especially  its 
employment  in  treaties  of  commerce  and  navigation,  see  Stanley  K.  Hornbeck  in 


PUBLIC    RIGHTS  75 

This  guarantee  of  protection  is  rendered  effective  by  the  customary 

consular  conventions,  which  generally  contain  a  provision  that  the 

consular  officers  of  the  respective  parties  may  have  recourse  to  the 

authorities  of  the  respective  countries  within  their  district,  whether 

federal  or  local,  judicial  or  executive,  in  order  to  defend  the  rights 

and  interests  of  their  countrymen.     They  have  the  ultimate  sanction 

of  resort  to  diplomatic  protection. 

The  Uberty  of  conscience  and  freedom  of  worship  have  obtained 

more  or  less  general  recognition  since  the  peace  of  Westphalia.    These 

privileges  are  nevertheless  confirmed  by  treaties  reading  in  effect  as 

follows : 

The  respective  citizens  of  the  High  Contracting  Parties  "shall  not 
be  disturbed,  molested  nor  annoyed  in  any  manner,  on  account  of  their 
religious  belief,  nor  in  the  proper  exercise  of  their  peculiar  worship, 
either  within  their  own  houses  or  in  their  own  churches  or  chapels,  which 
they  shall  be  at  liberty  to  build  and  maintain,  in  convenient  situations, 
to  be  approved  of  by  the  local  Government,  interfering  in  no  way  with, 
but  respecting  the  religion  and  customs  of  the  country  in  which  they 
reside.  Liberty  shall  also  be  granted  to  the  citizens  of  either  of  the  Con- 
tracting Parties  to  bury  those  who  may  die  in  the  territory  of  the  other, 
in  burial  places  of  their  own,  which,  in  the  same  manner,  maj^  be  freely 
established  and  maintained."  ' 

In  the  absence  of  treaty,  there  is  no  obligation,  other  than  comity, 
to  permit  freedom  of  worship,  and  the  vigorous  attempts  of  countries 
having  a  state  religion  to  prevent  worship  according  to  other  doctrines 
and  reUgions  can  be  protested  on  the  ground  of  comity  alone.  Viola- 
tions of  local  law  in  this  regard  by  individuals  could  not  be  met  by 
diplomatic  interposition;  so  where  American  bibles  were  introduced 
into  certain  Eastern  and  CathoUc  countries  contrary  to  local  pro- 
hibitions, good  offices  only  were  authorized  to  secure  an  amelioration 
in  the  harsh  application  of  the  law.  Active  propaganda  of  a  foreign 
religion  obnoxious  to  the  country  as  a  disturbance  of  its  established 
religion  has  not  been  supported  by  the  United  States.  But  very 
few  countries  at  the  present  day  restrict  peaceful  worship  by  aUens.- 

3  A.  J.  I.  L.  395,  619  and  797  and  bibliography,  p.  396.  See  alao  Moore'a  Dig.  V, 
257  et  seq. 

1  Treaty  between  the  U.  S.  and  Argentine,  July  27,  1853,  art.  13,  Malloy,  Treaties, 
etc.,  1910,  I,  24. 

*  Notes  quoted  in  Moore's  Dig.  II,  §  194,  pp.  171-181. 


76  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

Several  South-American  countries  at  one  time  denied  to  Protestant 
clergymen  the  right  to  perform  a  marriage  ceremony,  and  in  other 
respects  denied  religious  liberty  to  non-Catholics.  No  marriage  was 
recognized  unless  sanctioned  by  a  Catholic  priest.  Children  of  Prot- 
estant marriages  were  considered  illegitimate  and  could  not  inherit 
property.  On  representations  of  the  United  States,  Peru,  and  later 
Ecuador  and  Bolivia  changed  their  laws  so  as  to  recognize  Protestant 
marriages  and  rights  thereunder.^ 

The  freedom  of  speech  and  of  the  press  is  usually  granted  to  aliens. 
The  extent  of  this  freedom  differs  from  country  to  country,  being 
generally  more  restricted  in  monarchical  countries.  Certain  state- 
ments may  incur  the  penalties  of  the  criminal  law,  as  incitement  to 
murder  or  other  crimes.  The  alien  is  never  relieved  from  liability 
to  actions  for  libel.  In  some  countries,  as  in  France,  the  freedom  of 
the  press  may  be  subjected  to  special  requirements,  e.  g.,  that  the 
director  of  a  newspaper  be  a  citizen.^ 

The  right  of  association  and  assembly  has  been  sometimes  considered 
a  political  right.  Where  used  for  poUtical  purposes,  obnoxious  to 
the  interests  of  the  state  or  to  the  laws  of  police  and  safety,  there 
appears  Uttle  question  as  to  the  state's  right  to  deny  it  to  foreigners. 
So,  in  1881  an  international  congress  of  socialists  was  prohibited  by 
the  Swiss  authorities  in  Zurich.  The  federal  court  considered  the 
right  of  an  associated  propaganda  a  political  right  which  could  con- 
stitutionally be  refused  to  foreigners.^  The  German  law  of  associa- 
tion and  assembly  is  limited  to  nationals,  but  its  exercise  by  aliens  for 
non-political  purposes  has  apparently  never  been  hampered.  In  France, 
the  right  is  granted  to  foreigners,  subject  to  the  laws  of  police  and 
safety.  Where  certain  kinds  of  associations  are  permitted,  as,  for 
example,  professional  syndicate  associations,  it  is  sometimes  required 
that  the  directors  and  administrators  be  nationals,  e.  </.,  by  the  French 
law  of  March  2,  1884,  article  4."  ' 

1  Mr.  Hay,  Sec'y  of  State  to  Mr.  Bridgman,  Sept.  1,  1899,  For.  Rel.,  1899,  pp. 
11^114. 

*  Law  of  July  29,  1881,  art.  6;  Weiss,  Droit  int.  priv6,  II,  115;  Rolin,  op.  ciL, 
14G-147.    See  also  notes  quoted  in  Moore's  Dig.  II,  §  193,  pp.  161-171. 

'Orelli  in  14  R.  D.  I.  (1882),  473  el  seq.;  Baty,  International  law,  1909,  p.  188. 

<  Weiss,  op.  cit.  II,  115,  116. 


PUBLIC    RIGHTS  77 

The  right  of  petition  is  not  uniformly  granted  to  aliens.  In  a 
number  of  countries,  aliens  may  exercise  this  liberty  with  respect  to 
matters  which  especially  concern  aliens,  but  not  in  matters  relating 
to  politics  or  similar  affairs.^ 

The  liberty  of  instruction  is  usually  granted  to  foreigners,  and  com- 
pulsory public  school  attendance  is  imposed  upon  them.^  In  the  Jap- 
anese school  question  the  right  of  Japanese  subjects  to  receive  public 
instruction  in  the  United  States  gave  rise  to  acrimonious  diplomatic 
negotiations.  The  treaty  between  the  United  States  and  Japan  pro- 
vided for  a  right  of  residence.  That  this  right  involved  the  right  of 
Japanese  children  to  be  admitted  on  equal  terms  with  other  foreigners 
to  the  public  schools  was  asserted  by  Japan,  on  the  occasion  of  the 
passing  by  the  San  Francisco  School  Board  of  a  resolution  segregating 
the  Japanese  children  from  the  whites  and  placing  them  in  separate 
schools.  After  a  suit  had  been  instituted  by  the  federal  government  to 
force  California  to  comply  with  the  treaty,  which  prohibited  dis- 
crimination, the  matter  was  compromised  by  the  withdrawal  of  the 
resolution  and  an  amendment  of  the  immigration  law  with  a  new 
agreement  or  understanding  by  which  Japan  undertook  to  restrict 
the  emigration  of  Japanese  laborers  to  the  United  States.  It  is  be- 
lieved that  the  treaty  was  complied  with  by  granting  equal  rights 
of  instruction,  which  need  not  necessarily  be  given  in  the  same  schools 
with  white  children.^ 

The  liberty  of  commerce  is  usually  provided  for  in  treaties.^  It 
includes  the  incidental  rights  to  come  freely  with  vessels  to  the  ports 

1  Frisch,  op.  cit.,  332;  Weiss,  op.  cit.,  II,  117. 

^Tchernoff,  op.  cit.,  489  et  seq.;  Weiss,  op.  cit.,  II,  118  et  seq.;  18  Clunet  (1891), 
1056-1058. 

'  The  real  questions  under  the  Japanese  treaty,  etc.,  by  Elihu  Root,  1  A.  J.  I.  L. 
(1907),  273  et  seq.  The  Japanese  school  incident  by  Theodore  P.  Ion  in  Proceedings 
of  the  Amer.  Soc.  of  Int.  Law,  v.  1  (1907),  173-194;  Barthelemy  in  14  R.  G.  D.  I.  P. 
6.36  et  seq.  A  review  of  various  expressions  of  opinion  as  found  in  current  periodical 
Hterature  is  given  in  an  editorial  comment  in  1  A.  J.  I.  L.  (1907),  449-452.  Treaty 
of  Feb.  21,  1911,  Treaty  series,  558,  Malloy,  Treaties,  etc..  Ill  (supplement),  77,  82. 

*  Until  recently  some  European  covmtries  greatly  restricted  the  commercial  rights 
of  ahens.  Thus,  until  1873,  it  was  necessary  in  Denmark  to  be  a  Danish  subject  or 
to  have  resided  there  six  years  in  order  to  be  a  merchant  in  that  country.  Other  re- 
strictions existed  in  Sweden.    See  Bonfils,  op.  cit.,  ^  451. 


78  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

of  the  country,  to  hire  and  occupy  houses  and  warehouses  for  purposes 
of  residence  and  trade,  to  carry  on  domestic  trade,  etc.^  The  treaties 
read  somewhat  like  the  following: 

"The  citizens  of  the  two  countries,  respectively,  shall  have  liberty, 
freely  and  securely,  to  come  with  their  ships  and  cargoes  to  all  places, 
ports  and  rivers  in  the  territories  of  either,  to  which  other  foreigners,  or 
the  ships  or  cargoes  of  any  other  foreign  nation  or  State,  are,  or  may  be, 
permitted  to  come;  to  enter  into  the  same,  and  to  remain  and  reside  in 
any  part  thereof,  respectively;  to  hire  and  occupy  houses  and  ware- 
houses, for  the  purposes  of  their  residence  and  commerce;  to  trade  in  all 
kinds  of  product,  manufactures  and  merchandise  of  lawful  commerce; 
and  generally  to  enjoy,  in  all  their  business,  the  most  complete  protection 
and  security,  subject  to  the  general  laws  and  usages  of  the  two  countries 
respectively."  2 

There  are  generally  joined  to  this  treaty  provision  other  clauses 
providing  that  no  discriminating  duties  shall  be  levied  and  that  navi- 
gation charges  shall  be  equal,  to  which  is  usually  added  the  most 
favored  nation  clause.  In  addition,  all  rights  growing  out  of  relations 
of  trade  and  commerce  are  guaranteed,  with  a  provision  against  any 
discrimination  in  taxes  or  imposts.  In  the  treaty  between  the  United 
States  and  the  Argentine  RepubUc,  this  special  clause  reads: 

"  In  whatever  relates  to  the  police  of  the  ports,  the  lading  and  unlading 
of  ships,  the  safety  of  the  merchandise,  goods  and  effects,  and  to  the 
acquiring  and  disposing  of  property  of  every  sort  and  denomination, 
either  by  sale,  donation,  exchange,  testament  or  in  any  other  manner 
whatsoever,  as  also  to  the  administration  of  justice,  the  citizens  of  the 
two  contracting  parties  shall  reciprocally  enjoy  the  same  privileges, 
liberties  and  rights,  as  native  citizens;  and  they  shall  not  be  charged,  in 
any  of  those  respects,  with  any  higher  imposts  or  duties  than  those  which 
are  paid,  or  may  be  paid,  by  native  citizens,  submitting,  of  course,  to  the 
local  laws  and  regulations  of  each  country  respectively."  ' 

The  liberty  to  carry  on  trade  is  sometimes  provided  in  very  general 
terms,  as  follows: 

'  In  the  absence  of  treaty  or  law,  there  ia  no  inherent  right  to  carry  on  domestic 
trade.    Sec,  e.  g.,  exclusion  of  Syrians  in  Haiti  from  right  to  trade,  1903,  supra,  p.  47. 

*  Treaty  of  July  27,  1853  between  the  United  States  and  Argentine,  art.  II,  Malloy, 
Treaties,  etc.,  1910,  I,  21. 

*  Treaty  of  July  27,  1853  between  the  United  States  and  Argentine,  art.  IX,  Mal- 
loy, Treaties,  etc.,  1910,  I,  23. 


PUBLIC   RIGHTS  79 

"The  citizens  of  each  of  the  high  contracting  parties  shall  have  liberty 
to  travel  in  the  States  and  Territories  of  the  other,  to  carry  un  trade, 
wholesale  and  retail,  to  hire  and  occupy  houses  and  warehouses,  to  era- 
ploy  agents  of  their  choice,  and  generally  to  do  anything  incident  to  or 
necessary  for  trade,  upon  the  same  terms  as  the  natives  of  the  country, 
submitting  themselves  to  the  laws  there  established."  ^ 

The  right  to  carry  on  industry  was  most  strictly  limited  in  the  Mid- 
dle Ages  and  the  centuries  following  up  to  the  French  revolution. 
The  guild  rights  prevented  every  free  development  of  industry  and 
trade.  At  the  present  time,  the  freedom  of  industry  is  generally 
granted  to  aliens  on  terms  of  equality  with  nationals,  either  in  con- 
stitutions, statutes  or  treaties,  although  from  some  trades  aliens  are 
still  excluded  or  admitted  only  on  condition.  The  disability  of  the 
alien  is  generally  expressed  in  the  statute  or  treaty.  These  disabilities 
are  established  for  economic  reasons,  either  to  prevent  foreign  com- 
petition, to  reserve  national  resources  for  nationals,  or  to  protect 
national  labor.  ^ 

Thus,  the  coasting  trade  is  almost  universally  reserved  to  nationals, 
although  some  countries,  for  example.  Great  Britain  (in  the  United 
Kingdom),  Belgium,  Bulgaria,  Roumania  and  most  South  and  Central 
American  states  admit  aliens  to  the  coastal  trade.  Admission  to  this 
trade  is  frequently  conditioned  upon  reciprocal  concessions.  Some 
countries,  like  Germany,  open  the  right  to  foreign  vessels  by  treaty 
or  royal  decree.^  Where  the  liberty  is  not  granted  for  a  special  con- 
sideration, the  most  favored  nation  clause  plays  a  prominent  part  in 
extending  the  liberty  to  the  citizens  of  other  nations. 

Fishing  in  coastal  waters  is  likewise  generally  reserved  to  nationals. 
This  appears  to  be  an  almost  universal  practice  which  has  been  con- 
firmed by  international  treaties  and  conventions,  e.  g.,  The  North  Sea 
Convention  of  1882.    Some  states,  as,  for  example,  most  of  the  states  of 

1  Treaty  of  Feb.  26,  1871  between  the  United  States  and  Italy,  art.  II,  Malloy, 
Treaties,  etc.,  1910,  I,  970.    On  liberty  to  trade  see  Baty,  op.  cit.,  41,  57. 

^  Frisch,  op.  cit.,  316. 

'  Decree  of  Germany  of  Dec.  29,  1881  opening  coasting  trade  to  various  nations, 
y2  State  Pap.  817;  British  Act,  17  Vict.  ch.  5  (1854),  44  St.  Pap.  923;  Portuguese 
decree  of  Oct.  21,  1880  opening  a  limited  coasting  trade,  73  St.  Pap.  304  and  Dec.  15, 
1885,  77  St.  Pap.  130.    See  also  Liszt,  op.  cit.,  190. 


80  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

the  United  States,  Greece,  and  Portugal,  admit  aliens  to  coastal  fish- 
ing.^ 

Ownership  in  national  vessels  is  often  limited,  in  whole  or  up  to  a 
certain  percentage,  to  nationals,  and  employment  as  officers  on  na- 
tional vessels  is  frequently  confined  to  nationals. 

The  practice  of  certain  professions  is  either  confined  to  those  having 
political  rights  (ahens  being  thus  automatically  excluded),  e.  g.,  ad- 
vocates, avoues,  judicial  officers,  notaries,  etc.,  in  France,  or  else 
subjected  to  the  requirement  of  a  national  diploma,  e.  g.,  physicians 
and  dentists.-  The  exercise  of  certain  occupations  is  sometimes 
conditioned  upon  reciprocity,  as  for  example,  the  practice  of  phar- 
macy in  France. 
y'  The  protection  of  national  labor  has  dictated  such  legislation  as 
'^'  the  French  law  of  October  2,  1888,  and  that  of  August  8,  1893,  which 
establish  special  conditions  upon  the  employment  of  aliens,  such  as 
matriculation  and  other  minor  requirements,  penalty  for  non- 
compliance being  imposed  on  the  employer.^  The  protection  of  national 
labor  against  foreign  competition  is  responsible  for  numerous  classes  of 
exclusion  laws,  such,  for  example,  as  the  Chinese  exclusion  acts.  States 
sometimes  provide  that  aliens  shall  not  be  employed  on  the  public 
works  of  the  state.  France  has  on  several  occasions  so  provided,  ** 
and  various  states  of  the  United  States  possess  constitutional  pro- 
visions or  have  passed  statutes  to  this  effect.^     Foreign  workmen  in 

1  Pradier-Fod6re,  op.  cil.,  V,  §§  2448-2451.  See  also,  on  the  right  to  participate 
in  the  coasting  trade  and  coastal  fishing  the  compilation  of  the  writer  on  "Coastal 
waters/'  Washington,  1910,  prepared  in  connection  with  the  North  Atlantic  Coast 
Fisheries  Arbitration  at  the  Hague,  1910. 

2  Droits  des  medecins  Strangers  en  France  by  E.  H.  Perreau,  37  Clunet  (1910), 
21-35;  Frisch,  op.  cil.,  331.  See  also  For.  Rel.,  1896,  140;  Moore's  Dig.  II,  §  195; 
Resolutions  of  Second  Pan  American  Congress,  Mexico,  1901,  S.  Doc.  330,  57th 
Cong.,  Ist  sess. 

3  Weiss,  op.  cil.,  II,  141;  Frisch,  op.  cil.,  329. 

*  £:.?.,  Circular  of  the  Minister  of  Agriculture  of  Dec.  2,  1887, 14  Clunet  (1887),  794. 

'  E.  g.,  Arizona,  Idaho,  Wyoming,  Massachusetts,  New  Jersey,  Pennsylvania,  Cali- 
fornia, Oregon,  Montana,  Nevada,  Hawaii  and  New  York;  §  14  of  the  Labor  Law 
of  New  York  (Consolidated  Laws),  provides  that  "in  the  construction  of  public 
works  by  the  State  or  a  municipality,  or  by  persons  contracting  with  the  State  or 
such  municipality,  only  citizens  of  the  United  States  shall  be  employed.  .  .  ."  The 
New  York  Court  of  Appeals  recently  (Feb.  25,  1915)  held  this  statute  constitutional 


PUBLIC    RIGHTS  81 

various  European  countries  are  only  within  certain  limitations  ad- 
mitted to  the  benefits  of  workmen's  insurance.^  Reciprocity  treaties 
have  largely  mitigated  these  discriminations,  and  the  attempts  of 
international  labor  associations  will  do  much  to  bring  about  equality 
of  treatment  between  disabled  workmen  regardless  of  nationality.^ 
Some  countries  do  not  grant  poor  reUef  or  the  benefit  of  their  chari- 
table institutions  to  aliens,^  so  that  many  European  countries  have 
undertaken  to  assist  their  nationals  abroad  who  need  such  relief. 
Reciprocitj'^  treaties  largely  govern  the  matter.  The  laws  of  the 
United  States,  Great  Britain  and  France  are  among  the  most  liberal 
in  this  respect,  for  aliens  are  admitted  to  the  various  forms  of  social 
assistance  and  poor  reUef  without  the  requirement  of  reciprocal  priv- 
ileges.^ In  the  United  States  the  pauper  alien,  subject  to  a  limited 
power  of  deportation  after  admission,  is  cared  for  locally,  and  the  for- 
eign government  is  not  asked  to  assume  the  expense  of  returning  him 
to  his  own  country.  On  the  other  hand,  the  United  States  will  not 
bring  back  to  this  country  from  abroad  an  indigent  American  citizen.' 

(People  V.  Crane,  X.  Y.  Law  Journal,  March  4,  1915)  reversing  the  Appellate  Division 
(150  N.  Y.  Supp.  933).  A  note  on  the  decision  in  the  lower  court  may  be  found  in 
15  Columbia  L.  Rev.  263.  The  case  has  been  brought  to  the  U.  S.  Supreme  Court 
on  appeal. 

1  Die  Stellung  der  Auslander  in  der  Arbeiterversicherung  der  europaischen  Staaten 
by  F.  W.  Giinther  in  6  Ztschr.  f.  d.  gesam.  Vereicherungswissenschaft  (1906),  488-506. 
Le  traitement  des  etrangers  au  point  de  vue  de  la  responsabilite  civile  et  de  I'assur- 
ance,  2  R.  D.  I.  prive  (1906),  94-101;  4  iUd.  (1908),  24-35. 

2  La  reciprocite  en  matiere  de  retraites  des  ouvriers  etrangers,  by  B.  Raynaud, 
33  Clunet  (1906),  115-124;  Raynaud,  B.,  Droit  international  ouvrier,  Paris,  1906; 
Pic,  Paul,  La  protection  legale  des  travailleurs  et  le  droit  international  ouvrier, 
Paris,  1909.  Several  of  the  states  of  the  U.  S.,  e.  g.,  Kansas,  Xew  Hampshire,  New 
Jersey  and  Washington,  discriminate  against  non-resident  alien  dependents.  See 
C.  C.  Hyde  and  C.  H.  Watson  in  7  Illinois  L.  Rev.  414. 

3  This  is  the  case  in  several  states  of  the  U.  S.  Freund,  Ernst,  The  police  fwwcr, 
pubhc  policy  and  constitutional  rights,  Chicago,  1904,  §  712. 

*  Quelques  mots  sur  I'assistance  publique  en  droit  international,  5  R.  D.  I. 
prive  (1909),  785-789.  Du  nouveau  r61e  de  I'assistance  internationale  et  du  droit 
de  sejour  des  etrangers  by  Tchernoff,  Rev.  du  droit  public,  1899,  pp.  86-129;  Weiss, 
up.  fit.,  148  et  seq.    See  also  infra,  §  171. 

*  See  quotations  from  instructions  of  Secretaries  Day  and  Sherman  in  Moore's 
Dig.  lY,  18.  The  withdrawal  of  American  citizens  from  Mexico  in  1913,  and  the 
payment  of  their  expenses  was  based  on  special  circumstances  of  assumed  danger 
to  life. 


82  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

The  English  AUen's  Act,  and  the  laws  of  various  other  countries  govern- 
ing expulsion,  permit  of  the  deportation  of  an  alien  who  within  a 
brief  period  after  his  landing  has  become  subject  to  poor  relief.  Old 
age  pensions  are  generally  reserved  to  nationals. 

In  the  matter  of  judicial  procedure  and  the  jurisdiction  of  courts, 
the  alien's  position  differs  only  slightly  from  that  of  the  national.  As 
a  plaintiff  his  right  to  sue  is  still  in  many  countries  subjected  to  the 
deposit  of  security  for  costs,  the  cautio  judicatum  solvi}  Partly  by 
statute,^  partly  by  reciprocity  treaties,  and  partly  by  the  Hague 
conventions  of  1896  and  1905,  the  requirement  of  security  for  costs 
has  been  abolished  by  most  of  the  countries  of  Europe.^  In  the 
United  States,  Great  Britain,  and  the  cantons  of  Switzerland,  the 
security  is  not  required  from  aliens  as  such,  but  from  non-residents, 
whether  native  or  foreign. 

The  right  to  sue  in  forma  pauperis  is  granted  to  aliens  in  many 
countries  and  in  most  of  the  states  of  the  United  States.^  In  some 
countries  the  grant  of  this  privilege  is  conditioned  upon  reciprocity.^ 
The  European  countries  have  concluded  numerous  treaties  among 
themselves  for  the  extension  of  judicial  assistance  to  their  respective 
citizens  or  subjects.  The  United  States  government  declined  in  1883 
to  impose  this  duty  on  the  states  by  treaty.^ 

The  right  of  the  foreigner  to  the  jurisdiction  of  the  courts  for  the 
protection  of  his  rights  is  now  freely  granted  by  treaty,  if  not  recog- 
nized as  a  part  of  the  national  law.     Thus  the  treaty  between  the 

1  The  cautio  judicatum  solvi  in  Roman  law  covered  security  for  the  judgment  as 
well.  Sicherheitsleistung  fiir  Kosten  by  Dr.  Goldschmidt  in  23rd  Report  of  the 
International  law  association  (1906),  182  et  seq. 

2  E.  g.,  in  Italy,  Portugal,  Egypt,  Denmark,  Norway. 

'  Maudy,  G.  A.,  La  cautio  judicatum  solvi.  Les  etrangers  devant  la  justice  en 
droit  int.  prive,  Paris,  1897.  De  la  caution  judicatum  solvi  by  R.  de  la  Grasserie, 
25  Clunet  (1898),  842-847.  Clunet,  Tables  gen^rales,  I,  Nos.  5844-5871;  8939-8941 
and  })ibliography  in  Appendix. 

*  Details  are  not  possible  here.  References  by  country  are  given  in  the  bibliography 
in  Appendix.  See  article  by  Dr.  Victor  Schneider  on  Foreign  pauper  litigants  in  23rd 
report  of  the  International  law  association  (1906),  164  ct  seq. 

''  Despagnet,  Dr.  int.  priv6  (4th  cd.),  148. 

«  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Marquis  Dalla  Valle,  Mar.  9,  1883,  Moore'r 
Dig.  IV,  8. 


PUBLIC   RIGHTS  83 

United  States  and  the  Argentine  Republic  (July  27,  1853,  art.  8), 
provides : 

"The  citizens  of  the  two  contracting  parties  shall  reciprocally  receive 
and  enjoy  full  and  perfect  protection  for  their  persons  and  property, 
and  shall  have  free  and  open  access  to  the  courts  of  justice  in  the  said 
countries  respectively,  for  the  prosecution  and  defense  of  their  just  rights, 
and  they  shall  be  at  liberty  to  employ  in  all  cases  such  advocates,  attor- 
neys or  agents  as  they  may  think  proper;  and  they  shall  enjoy,  in  this 
respect,  the  same  rights  and  privileges  therein  as  native  citizens."  ^ 

The  treaty  with  Italy,  which  is  typical  of  the  more  recent  treaties, 
provides: 

"The  citizens  of  either  party  shall  have  free  access  to  the  courts  of 
justice,  in  order  to  maintain  and  defend  their  own  rights,  without  any 
other  conditions,  restrictions,  or  taxes  than  such  as  are  imposed  upon  the 
natives.  They  shall,  therefore,  be  free  to  employ,  in  defense  of  their 
rights,  such  advocates  ...  as  they  may  judge  proper  .  .  .  and  such 
citizens  .  .  .  shall  have  free  opportunity  to  be  present  at  the  decisions 
and  sentences  of  the  tribunals  in  all  cases  which  may  concern  them,  and 
likewise  at  the  taking  of  all  examinations  and  evidences  which  may  be 
exhibited  in  .  .  .  trials."  ^ 

The  proper  court  in  which  to  sue  an  alien  varies  often  with  the  form 
and  origin  of  the  action,  e.  g.,  whether  it  is  a  real  action,  or  a  cause 
of  action  arising  within  or  outside  the  country,  and  depends  some- 
times upon  jurisdiction  by  consent,  the  possession  of  local  property, 
and  other  matters.  This  question  is  closely  related  to  the  conflict 
of  laws  and  can  hardly  be  discussed  here.^  The  right  of  a  foreign 
corporation  to  sue  in  the  absence  of  treaty  or  of  local  registration  and 
recognition  is  disputed,  though  the  modern  tendency  is  to  remove  all 
restrictions  on  this  right.  A  recent  treaty  of  the  United  States 
provides: 

"Limited-liability  and  other  companies  and  associations,  commercial, 
industrial  and  financial,  already  or  hereafter  to  be  organized  in  accord- 
ance with  the  laws  of  either  High  Contracting  Party  and  domiciled  in 
the  territories  of  such  Party,  are  authorized,  in  the  territories  of  the  other, 

1  Malloy,  Treaties,  etc.,  1910,  I,  22. 

2  Treaty  of  Feb.  26,  1871,  art.  23,  Malloy,  Treaties,  etc.,  1910,  I,  976.  As  to  pret- 
erence  of  American  to  foreign  creditors  in  attachment  proceedings  in  American  courts, 
see  Disconto  Gesellschaft  t;.  Umbreit,  208  U.  S.  570,  and  For.  Rel.  1910,  518-522. 

'  See  the  article  of  Prof.  J.  H.  Beale,  The  jurisdiction  of  courts  over  foreigners, 
26  Harvard  Law  Rev.  (1913),  193  el  seq.;  283  et  seq. 


84  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS    ABROAD 

to  exercise  their  rights  and  appear  in  the  courts  either  as  plaintiffs  or 
defendants,  subject  to  the  laws  of  such  other  Party."  ^ 

A  peculiar  condition  is  found  in  the  French  law  which  fails  to  give 
its  national  courts  jurisdiction  over  suits  between  two  foreigners. 
French  courts,  however,  in  view  of  the  fact  that  they  were  not  pro- 
hibited from  taking  jurisdiction,  have  assumed  it  in  a  long  line  of 
cases,  so  that  while  the  rule  leaves  them  without  jurisdiction,  the  excep- 
tions have  narrowed  the  rule  very  greatly.^  Belgium,  which  originally 
followed  France,  aboHshed  this  provision  in  1876. 

Article  14  of  the  French  civil  code  contains  a  unique  provision,  its 
harshness  being  particularly  striking  in  view  of  the  leadership  assumed 
by  France  in  ameliorating  the  condition  of  aliens.  This  article  pro- 
\ddes: 

"A  foreigner,  even  though  not  a  resident  of  France,  ma}^  be  cited  be- 
fore the  French  tribunals,  for  the  execution  of  obligations  contracted  in 
France,  with  a  Frenchman ;  and  may  also  be  sued  in  the  French  tribunals 
upon  obligations  contracted  by  him  abroad,  with  a  Frenchman." 

A  French  plaintiff  may,  therefore,  compel  a  non-resident  alien  de- 
fendant to  appear  before  the  French  courts.  Esperson  and  other 
writers  consider  this  an  outrageous  rule,  and  indeed  judgments  of 
French  courts  pronounced  against  an  alien  non-resident  defendant  who 
does  not  appear  are  not  executed  by  foreign  courts.^ 

The  inability  of  non-resident  alien  representatives  of  a  deceased 
alien  to  sue  in  some  states  of  the  United  States  for  injuries  resulting  in 
death  by  wrongful  act,  notwithstanding  the  provisions  of  a  treaty 
granting  to  aliens  ''protection  and  security  for  their  persons  and 
property  and  .  .  .  the  same  rights  and  privileges  as  are  granted  to 
the  natives"^  caused  an  amendment  of  the  treaty  of  1871  with  Italy 
(an  ItaUan  subject  was  involved  in  the  case  cited)  reading  as  follows: 

'  Treaty  of  Feb.  21,  1911  between  the  United  States  and  Japan,  art.  7,  Treaty 
series.  No.  .558,  p.  5,  Malloy,  Treaties,  etc.,  Ill  (1913),  79. 

''■  Jurisdiction  in  actions  between  foreigners,  by  A.  Pillet,  18  Harvard  Law  Rev.  325. 

'  Beale  in  20  Harvard  Law  Rev.,  209  et  scq.;  Pillet  in  18  Harvard  Law  Rev.  325 
el  aeq. 

*  Maiorano  v.  B.  &  O.  II.  R.  Co.,  213  U.  S.  268  at  p.  274-275,  decided  by  Mr.  Justice 
Moody.  The  action  was  begun  in  Pennsylvania,  under  a  statute  of  that  state.  See 
also  McGovern  v.  Philadelphia  &  R.  Ry.  Co.  (1914),  209  Fed.  975. 


PUBLIC    RIGHTS  85 

"The  citizens  of  each  of  the  high  contracting  parties  shall  receive  in 
the  States  and  Territories  of  the  other  the  most  constant  security  and 
protection  for  their  persons  and  property  and  for  their  rights,  including 
that  form  of  protection  granted  by  any  state  or  national  law  which  es- 
tablishes a  civil  responsibility  for  injuries  or  for  death  caused  by  negli- 
gence or  fault  and  gives  to  relatives  or  heirs  of  the  injured  party  a  right 
of  action,  which  right  shall  not  be  restricted  on  account  of  the  nationality 
of  such  relatives  or  heirs;  and  shall  enjoy  in  this  respect  the  same  rights 
and  privileges  as  are  or  shall  be  granted  to  nationals,  provided  that  they 
submit  themselves  to  the  conditions  imposed  on  the  latter."  ^ 

The  advantages  of  these  rights  are  not  apparently  available  to  other 
aliens  who  by  treaty  of  their  national  government  enjoy  most  fav- 
ored nation  treatment.-  Attention  may  again  be  drawn  to  the  fact 
that  the  "equal  protection"  guaranteed  in  treaties  does  not  signify 
an  identity  of  rights  with  nationals,  but  merely  an  equal  protection  in 
such  rights  as  are  granted. 

The  execution  of  foreign  judgments  is  an  intricate  and  complicated 
branch  of  the  law.  Without  entering  into  an}^  discussion  of  the  sub- 
ject, four  principles  which  govern  the  practice  of  the  several  im- 
portant countries  may  be  pointed  out: 

1.  No  execution  is  issued  on  a  foreign  judgment,  but  it  is  admitted 
as  proof  of  its  validity,  either  alone  or  with  additional  evidence  of  the 
court's  jurisdiction  over  person  and  subject-matter,  in  a  new  action 
for  a  local  judgment.  When  regarded  as  conclusive  proof,  the  new- 
action  becomes  a  mere  formality  of  registration.  With  numerous 
variations,  this  is  the  system  adopted  in  Great  Britain,  the  United 
States,    Monaco,    Peru,    Russia,    Servia,    Switzerland    and    Uruguay. 

2.  An  exequatur  is  issued  on  the  foreign  judgment  without  reexam- 
ining it  and  without  requiring  reciprocity,  provided  it  be  regular 
in  form,  rendered  by  a  court  having  jurisdiction,  and  its  execution 
be  compatible  with  local  public  policy.  This  system  has  been  adopted 
by  the  Argentine  RepubUc,  Bulgaria,  Italy,  Portugal  and  the  Congo. 

3.  The  same  system  as  the  second,  except  that  reciprocity  is  re- 

1  Treaty  of  February  25,  1913,  art.  1. 

2  Dictum,  as  to  British  subjects,  in  McGovern  v.  Philadelphia,  209  Fed.  975.  Had 
the  action  arisen  after  the  treat}'  with  Italy  had  gone  into  effect,  it  is  believed  that  the 
better  reasoning  would  have  given  effect  to  the  most  favored  nation  clause.  See 
7  A.  J.  I.  L.  (1913)  370. 


86  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

quired.  In  this  class  are  Austria-Hungary,  Germany/  Egypt,  Spain, 
Brazil,  Mexico  and  Roumania. 

4.  In  the  last  system,  the  judgment  is  reexamined  before  the 
exequatur  issues.  This  is  the  practice  of  France,  Chile,  Denmark, 
Haiti,   Luxemburg,   Netherlands,   Norway  and  Sweden. 

Numerous  treaties,  which  the  civil  law  countries  frequently  con- 
clude, regulate  the  effect  and  the  execution  of  foreign  judgments  as 
between  the  contracting  parties." 

§  39.  Private  Rights. 

In  taking  up  the  rights  of  the  alien  in  private  law,  the  ownership 
of  real  property  may  first  be  considered.  The  right  to  acquire  im- 
movables, by  purchase  or  descent,  and  to  own  and  dispose  of  them 
may  be  forbidden  to  aliens.  While  no  longer  the  general  rule,  a  few 
states,  for  economic  or  political  reasons,  still  restuict  the  ownership 
of  real  property  within  their  territory  to  nationals.  This  is  still  the 
case  in  some  fifteen  states  of  the  United  States,  in  Russia  within 
certain  districts,  and  in  Roumania,  and  was  the  case  in  Turkey  until 
1867  and  in  England  until  1870.  Mexico  forbids  aliens  to  acquire 
real  property  within  sixty  miles  of  the  frontier  or  thirty  miles  of  the 
sea.  In  a  few  other  countries,  like  Japan  and  Haiti,  the  right  to  own 
realty  is  hmited.^  Fiore  traces  these  restrictive  provisions  to  the  feudal 
system.  The  practice  had  its  origin  perhaps  in  a  fear  that  control 
of  national  territory  by  foreigners  opened  too  great  a  danger  of 
foreign  influence,  domination  or  conflict.  Some  writers  consider  it 
curious  that  in  countries  in  which  the  requirement  of  citizenship  for  the 
enjoyment  of  civil  rights  is  of  least  force,  as  in  the  United  States  and 
Great  Britain,  where  rights  are  based  on  domicil,  the  national  territory 
should  be  regarded  as  so  peculiarly  sacred.    The  disability  of  an  alien 

^  It  seems,  however,  that  the  German  courts  refused  to  enforce  against  German 
insurance  companies  certain  judgments  obtained  in  California  by  American  pohcy- 
holdcrs  sustaining  losses  in  the  San  Francisco  earthquake  and  fire,  notwitiistanding 
that  a  reci[)rocal  right  would  l)e  granted  in  Cahfornia.    For.  Rel.  1910,  522. 

2  Des[)agnet,  Dr.  int.  priv6,  §  201  et  seq.  On  the  whole  subject  see  Despagnet, 
op.  ril.,  §§  190-209;  Weiss,  op.  cil.  V,  .543-734;  Piggott,  F.  T.,  Foreign  judgments  and 
jurisdiction.  Hong  Kong  and  London,  1908,  3  v. 

^  Moore's  Dig.  IV,  43  cl  seq.;  for  law  in  the  United  States,  see  ibid.  32  et  seq. 


PRIVATE   RIGHTS  87 

to  hold  real  property  in  the  United  States  may  be  removed  by  treaty,^ 
and  the  treaty  of  1778  between  the  United  States  and  France  allowed 
citizens  of  either  country  to  hold  lands  in  the  other.-  By  reason 
of  the  existing  restrictive  legislation  of  many  of  the  states,  the  federal 
government,  as  a  matter  of  policy,  would  hardly  now  conclude  treaties 
granting  aliens  the  right  to  hold  real  property  in  the  United  States, 
though  there  appears  little  doubt  of  its  power  so  to  do.'  At  common 
law  aliens  could  take  by  act  of  a  party  but  not  by  operation  of  law; 
and  they  may  convey  or  devise  to  another,  but  such  title  is  always 
liable  to  be  divested  at  the  pleasure  of  the  state  by  office  found. ^  It 
has  even  been  held  that  an  alien  enemy  might  take  lands  by  devise 
until  office  found. ^ 

A  legal  prohibition  to  own  real  estate,  as  was  the  case  in  Haiti 
in  1885,  did  not  prevent  the  United  States  from  making  a  claim  on 
account  of  an  injury  to  real  property  owned  there  by  an  American  cit- 
izen, notwithstanding  Haiti's  defense  of  his  legal  inability  to  own  such 
property.  The  United  States  contended  that  his  title  was  merely  defea- 
sible and  that  he  owned  something,  for  the  arbitrary  spoliation  of  which 
by  the  government  he  had  a  claim  for  redress.  Until  legal  proceedings 
are  instituted  to  oust  the  alien,  his  inchoate  interests  should  be  pro- 
tected, and  even  if  his  title  was  one  of  possession  only,  this  must  be 
protected  until  by  due  process  of  law  he  is  dispossessed.^ 

The  evolution  of  the  right  of  succession  to  real  property  is  char- 
acteristic of  the  history  of  the  rights  of  aliens.  The  absolute  prohibi- 
tion to  succeed  which  existed  up  to  the  eighteenth  century  was  re- 
placed by  the  imposition  of  severe  taxes  under  the  system  of  the 
droit  d'aubaine.     After  the  gradual  abolition  of  the  droit  d'auhaine 

'  Orr  V.  Hodgson,  4  Wheat.  453. 

2  Carneal  v.  Banks,  10  Wheat.  181. 

'  Butler,  C.  H.,  Treaty-making  power  of  the  U.  S.,  New  York,  1902,  II,  §  330  et 
seq.;  Burr,  C.  H.,  Treaty-making  power  of  the  U.  S.,  Philadelphia,  1912,  p.  339  et 
seq.  and  Ware  v.  Hylton,  3  Dallas,  199;  Chirac  v.  Chirac,  2  Wheat.  259;  Fairfax  v. 
Hunter,  7  Cranch,  603;  Hauenstein  v.  Lynham,  100  U.  S.  483;  and  Geoffroy  v.  Riggs, 
133  U.  S.  258.  — 

*  Hauenstein  v.  Lynham,  100  U.  S.  483;  Martin  v.  Hunter,  1  Wheat.  304;  Govemeur 
V.  Robertson,  11  Wheat.  332. 

5  Fairfax  v.  Hunter,  7  Cranch,  603. 

«  For.  Rel.,  1885,  pp.  525-526. 


88  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

by  statute  and  treaty,  the  right  to  succeed  has  been  freely  granted, 
though  in  some  states  it  is  still  conditioned  upon  reciprocity.^ 

As  it  is  against  the  policy  of  the  United  States  to  decree  for- 
feitures, treaties  have  usually  provided  that  aliens  who  cannot  take 
property  by  descent  shall  have  the  right  to  dispose  of  their  property 
and  remove  the  proceeds  within  a  reasonable  time.  So,  for  example, 
article  2  of  the  treaty  of  May  8,  1848,  between  the  United  States 
and  Austria-Hungary,  provides: 

"Where,  on  the  death  of  any  person  holding  real  property,  or  property 
not  personal,  within  the  territories  of  one  party,  such  real  property 
would,  bj^  the  laws  of  the  land,  descend  "on  a  citizen  or  subject  of  the 
other,  were  he  not  disqualified  by  the  laws  of  the  country  where  such 
real  property  is  situated,  such  citizen  or  subject  shall  be  allowed  a  term 
of  two  years  to  sell  the  same,  which  term  may  be  reasonabl}^  prolonged, 
according  to  circumstances,  and  to  withdraw  the  proceeds  thereof, 
without  molestation,  and  exempt  from  any  other  charges  than  those 
which  may  be  imposed  in  like  cases  upon  the  inhabitants  of  the  country 
from  which  such  proceeds  may  be  withdrawn."  ^ 

The  payment  of  a  droit  de  detraction,  or  tax  on  the  removal  of  alien 
property  from  the  state,  has  since  the  beginning  of  the  nineteenth 
century  been  practically  abolished  by  statute  and  treaty. 

The  power  to  acquire,  own  and  dispose  of  personal  property  is  a 
universally  recognized  right  of  aliens.  It  is  often  guaranteed  by 
treaty,  subject  merely  to  the  payment  of  the  same  taxes  as  are  paid 
by  citizens.  The  following  clause  is  typical  of  the  treaties  concluded 
by  the  United  States: 

"The  citizens  or  subjects  of  each  of  the  contracting  parties  shall  have 
power  to  dispose  of  their  personal  property  within  the  States  of  the  other, 
by  testament,  donation  or  otherwise;  and  their  heirs,   legatees  and 

'  E.  g.,  in  Austria,  Sweden  and  the  United  States.  Art.  726  of  the  French  civil 
code  amended  the  hbcral  principles  of  the  French  revolutionary  period  which  had 
completely  abolished  the  droit  d'aubaine.  By  the  French  law  of  .Jul.v  14,  1819,  art. 
726  of  the  Civil  Code,  which  conditioned  the  right  to  succeed  upon  diplomatic  rec- 
iprocity, was  repealed.  This  liberal  principle  was  followed  in  the  B(>lfi;ian  law  of 
April  27,  1865  and  has  been  adopted  by  Spain,  Italy,  Denmark,  the  Netherlands 
and  Great  Britain.  Succession  taxes  are  due  from  non-resident  aliens  on  estates 
in  the  territory  as  from  nationals. 

*  Malloy,  Treaties,  etc.,  1910,  I,  34.  See  as  to  the  construction  of  a  similar  treaty 
with  Switzerland,  Hauenstein  v.  Lynham,  100  U.  S.  483. 


PRIVATE    RIGHTS  89 

donees,  being  citizens  or  subjects  of  the  other  contracting  party,  shall 
succeed  to  their  said  personal  property,  and  may  take  possession  thereof, 
either  by  themselves  or  by  others  acting  for  them,  and  dispose  of  the 
same  at  their  pleasure,  paying  such  duties  only  as  the  inhabitants  of  the 
country,  where  the  said  property  lies,  shall  be  liable  to  pay  in  like 
cases."  ' 

Consular  conventions  usually  provide  for  the  intervention  of  their 
national  consul  in  the  administration  of  the  estates  of  deceased  aliens, 
dying  without  local  representatives.- 

Rights  in  industrial  and  literary  property  are  protected  by  treaties 
of  reciprocity,  or  by  collective  conventions  such  as  the  Paris  conven- 
tion on  industrial  property  of  March  20,  1883  and  the  Berne  conven- 
tion on  literary  property  of  September  9,  1886.  Compliance  with  the 
formalities  of  the  local  law  is  always  required.  The  patent  and 
trademark  treaties  concluded  by  the  United  States  reciprocally  assure 
domestic  treatment  to  the  respective  citizens  of  the  contracting  par- 
ties. Legislation  differs  slightly  from  country  to  country.^  In  the 
absence  of  treaty  aliens  are  dependent  upon  the  provisions  of  local 
law  relating  to  the  protection  of  aliens.  In  a  case  arising  before  the 
conclusion  of  the  treaty  between  the  United  States  and  Germany  an 
American  inventor  sought  the  assistance  of  the  Department  of  State 
because  of  the  use  by  the  government  of  Germany  of  his  invention, 
for  which  as  an  alien  he  could  secure  no  patent.  The  Department  of 
State  answered: 

"  If  the  laws  of  the  country  afford  no  protection  in  such  cases,  it  is  not 
competent  for  this  Government,  by  a  diplomatic  channel,  to  supply  the 

1  Treaty  of  May  8,  1848  with  Austria-Hungary,  art.  I,  Malloy,  Treaties,  etc.,  I,  34. 

2  R.  S.  1709  et  seq.,  U.  S.  Cons.  Regulations,  §  389  et  seq.  But  see  Rocca  v.  Thomp- 
son, 223  U.  S.  317;  In  re  Lis'  estate,  139  N.  W.  300  and  article  by  F.  R.  Coudert  in 
13  Columbia  Law  Rev.  181-201.    See  also  infra,  §  166. 

'  Despagnet,  Dr.  int.  prive,  §85  el  seq.,  §62  (France);  Pradier-Foder6,  op.  cit. 
IV,  §§  2219-2253;  Darras,  A.,  Du  droit  des  auteurs  et  des  artistes  dans  les  rapport-s 
intemationaux,  Paris,  1887;  Silvy,  E.,  Des  droits  des  auteurs  et  des  artistes  sur  leurs 
oeuvres  au  point  de  vue  international,  Grenoble,  1894;  Unions  et  accords  en  matierc 
de  protection  de  la  propri^te  litteraire  et  artistique  by  Rothlisberger,  1  R.  D.  I. 
prive  (1905),  300-307;  1908,  88-110;  De  la  revision  en  1908  de  la  convention  de 
Berne  by  J.  Dubois,  36  Clunet  (1909),  954-982;  Brun,  J.  L.,  Les  marques  de  fabrique 
et  de  commerce  en  droit  frangais,  droit  compare  et  droit  international,  Paris,  1895. 


90  THE   DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

omission,  or  to  procure  either  protection  for  an  American  inventor  or 
compensation  for  his  invention."' 

Nor,  in  general,  will  a  country  grant  greater  rights  to  the  owner  of  a 
patent  or  trade-mark  than  he  has  in  his  own  country.  Thus,  the 
German  Supreme  Court  in  a  decision  of  May  8,  1907  held  that  an 
alien  invoking  for  his  goods  the  protection  of  the  German  law  must 
show  that  his  merchandise  is  equally  protected  in  his  own  country, 
i.  €.,  that  the  remedy  which  he  seeks  under  the  German  law  is  one  that 
is  secured  to  him  by  the  law  of  his  own  country.^ 

The  United  States  copyright  law  of  March  4,  1909  provides,  sec- 
tion 8: 

"That  the  author  or  proprietor  of  any  work  made  the  subject  of  copy- 
right by  this  Act,  or  his  executors,  administrators,  or  assigns,  shall  have 
copyright  for  such  work  under  the  conditions  and  for  the  terms  specified 
in  this  Act:  Provided,  however,  That  the  copyright  secured  b}^  this  Act 
shall  extend  to  the  work  of  an  author  or  proprietor  who  is  a  citizen  or 
subject  of  a  foreign  state  or  nation,  only: 

"  (a)  When  an  alien  author  or  proprietor  shall  be  domiciled  within  the 
United  States  at  the  time  of  the  first  publication  of  his  work;  or 

"  (b)  When  the  foreign  state  or  nation  of  which  such  author  or  pro- 
prietor is  a  citizen  or  subject  grants,  either  by  treaty,  convention,  agree- 
ment, or  law,  to  citizens  of  the  United  States  the  benefit  of  copyright  on 
substantially  the  same  basis  as  to  its  own  citizens,  or  copyright  protec- 
tion substantially  equal  to  the  protection  secured  to  such  foreign  author 
under  this  Act  or  by  treaty;  or  when  such  foreign  state  or  nation  is  a 
party  to  an  international  agreement  which  provides  for  reciprocity  in  the 
granting  of  copyright,  by  the  terms  of  which  agreement  the  United 
States  may,  at  its  pleasure,  become  a  party  thereto. 

"  The  existence  of  the  reciprocal  conditions  aforesaid  shall  be  deter- 
mined by  the  President  of  the  United  States,  by  proclamation  made 
from  time  to  time,  as  the  purposes  of  this  Act  may  require." 

In  accordance  with  these  provisions  requiring  identical  treatment  or 
reciprocal  treatment  to  Americans  abroad,  the  President  has  issued 
proclamations  extending  the  benefits  of  our  Copyright  Act  to  citizens 

'  Mr.  Cadwalader,  Act'g  Sec'y  of  State,  to  Mr.  Broadwcll,  July  28,  1875,  Moore'a 
Dig.  VI,  754. 

^  Zeitschrift  fiir  Industrierecht,  1906,  p.  261  cited  in  Singer,  Trade-mark  laws  of 
the  world,  191.3,  p.  22;j.  In  various  countries  of  South  America,  on  the  other  hand, 
the  first  i)er8on  to  register  a  trade-mark,  regardless  of  his  ownership,  receives  protec- 
tion, even  against  the  rightful  owner.  Many  alien  owners  of  trade-marks  are  thus 
defrauded. 


TRANSIENT  AND   DOMICILED   ALIENS  91 

of  practically  all  the  civilized  countries.  Under  section  1  (e)  of  the 
Act,  extending  protection  to  the  mechanical  reproduction  of  musical 
works,  additional  proclamations  have  been  issued  in  favor  of  many 
countries. 

The  limitations  on  the  property  rights  of  aliens  in  certain  national 
resources,  e.  g.,  national  vessels,  national  mines,  and  other  kinds  of 
property  have  already  been  noted.  In  other  matters  of  private  law 
aliens  enjoy  practically  the  same  rights  as  nationals.  In  family  law, 
a  few  restrictions  may  be  noted.  Countries  of  the  white  race  frequently 
prohibit  intermarriage  with  those  of  other  races.  In  some  countries, 
aliens  are  limited  in  their  rights  of  adoption  and  guardianship.  In 
France,  for  example,  an  alien  cannot  be  a  guardian.^  In  commercial 
matters,  the  alien  often  labors  under  minor  disabilities;  for  example, 
under  the  French  bankruptcy  laws,  an  alien  cannot,  by  an  assignment 
for  the  benefit  of  his  creditors,  release  himself  from  personal  liability 
for  his  debts. 

§  40.  Transient  and  Domiciled  Aliens. 

From  what  has  gone  before  it  will  have  been  seen  that  there  are 
different  categories  of  aliens,  differing  in  the  degree  of  fixity  which  their 
residence  possesses.  For  the  purpose  of  examining  their  rights  and 
obUgations,  we  may  distinguish  two  important  classes,  transient  and 
domiciled  aliens.  By  the  municipal  law  of  some  states  the  domiciled 
alien  occupies  a  position,  in  practically  all  respects  except  the  ex- 
ercise of  political  rights  and  duties,  the  same  as  that  of  the  national. 
This  is  the  case  in  France  and  a  few  other  countries.  In  the  Latin 
American  countries  the  domiciled  alien  is  required  to  fulfill  many 
obligations  from  which  the  transient  alien  is  exempt.  Publicists  differ 
in  the  emphasis  laid  upon  the  importance  of  the  distinction.-  Treaties 
often  fail  to  take  account  of  it.  Unquestionably,  however,  the  fact 
that  the  domiciled  alien  is  more  closely  identified  with  the  country 

'  Weiss,  op.  cil.  II,  228  et  seq.  De  la  tutelle  des  mineurs  d'apres  les  principalea 
legislations  de  I'Europe,  by  E.  Lehr,  R.  D.  1. 1902,  pp.  315-340;  Zur  Frage  der  Bevor- 
mundung  fremder  Staatsangehoriger,  by  Scheuffler,  1  Ztschr.  f.  int.  privat  u  oflfent. 
Recht  (1890),  181-186. 

2  Phillimore,  op.  cit.  II,  6  considers  it  of  great  importance;  Pradier-Fod6r6,  op. 
cU.  Ill,  §  1371,  does  not. 


92  THE   DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

of  residence  than  the  transient  alien  is  of  great  importance  in  deter- 
mining their  respective  rights  and  duties,  both  in  the  country  of  resi- 
dence and  with  respect  to  the  home  or  national  state.  ^ 

In  the  United  States  and  Great  Britain  domicil  plays  an  even  more 
important  part  than  nationality  in  determining  the  civil  status  of 
an  individual.  In  the  matter  of  the  capture  of  private  property  at 
sea  by  a  belUgerent,  such  property  is  regarded  as  enemy  or  neutral 
not  according  to  the  nationality  of  its  owner,  but  according  to  the 
territory  in  which  the  owner  has  his  commercial  domicil — this  on  the 
ground  that  his  industry  adds  to  the  strength  of  the  country  in  which 
it  is  carried  on.-  At  an  early  period  in  the  development  of  continental 
law  domicil  preceded  nationality  (where  they  were  not  identical)  as 
the  criterion  of  a  man's  personal  status.  In  this  respect  nationality 
has  replaced  domicil  on  the  continent. 

In  international  law,  foreigners  who  have  become  domiciled  in  a 
country  other  than  their  own,  acquire  rights  and  must  discharge  duties 
in  many  respects  the  same  as  those  possessed  by  and  imposed  upon 
the  citizens  of  that  country.^  In  some  countries,  as  in  Mexico,  the 
transient  foreigner  cannot  acquire  real  estate.  The  transient  foreigner, 
on  the  other  hand,  is  not  generally  subject  to  personal  taxes.  He  can, 
in  some  countries,  as  in  Belgium  and  Brazil,  be  more  easily  expelled 
than  the  domiciled  alien."*  The  domiciled  alien  owes  to  the  state  of 
his  residence  practically  all  the  duties  of  the  native  except  such  as 
have  a  political  character;  for  example,  he  is  subject  to  the  same  taxes, 
and  the  United  States,  at  least,  has  always  considered  that  he  is  sub- 
ject to  service  in  the  civic  guard,  and  may  be  required  to  aid  in  pre- 
serving public  order  and  even  to  support  and  defend,  in  all  ways  ex- 
cept general  military  service,  the  interests  of  the  state  whose  local 
protection  he  enjoys.''     Both  the  United  States  and  Great  Britain 

•  Phillimoro,  07;.  cit.,  II,  6;  Fiore,  Nouv.  dr.  int.  pub.  (Antoinc's  trans.),  §  047; 
I^orneroy,  Woolscy's  ed.,  249. 

2  Westlake,  op.  cit.,  I,  212.  In  France  and  other  continental  countries,  nation- 
ality determines  enemy  or  neutral  character,  as  it  determines  status  and  capacity. 

3  Lau  Ow  Bew  v.  U.  S.,  144  U.  S.  47. 
<Bar,  op.  cit.,  221. 

*  Suf)ra,  p.  65.  Mr.  Fish  once  expressed  the  opinion  that  domiciled  aliens  might 
be  reqviired  to  serve  on  juries  and  in  the  fire  department  and  to  perform  similar 


TRANSIENT  AND   DOMICILED   ALIENS  93 

have  on  occasion  intimated  that  even  military  service  might  be  re- 
quired of  permanently  domiciled  aliens,  subject  always  to  the  alter- 
native of  leaving  the  country.^  In  numerous  treaties  between  the 
Latin  American  countries  only  transient  aliens  are  exempted  from 
military  service  and  from  extraordinary  contribution,  forced  loans, 
military  requisitions,  and  similar  burdens  which  nationals  must  bear.^ 

On  principle,  indeed,  permanently  domiciled  aliens  should  share 
the  normal  burdens  of  the  native  inhabitants  of  the  country  in  which 
they  have  estabhshed  their  permanent  residence.  This  applies  es- 
pecially to  the  sacrifices  which  civil  commotion,  insurrection  and 
civil  war  impose  upon  the  inhabitants.  The  Latin  American  countries 
have  suffered  severely  from  the  apparent  unwillingness  of  European 
governments  to  share  this  view.  The  citizen  domiciled  abroad  es- 
capes military  service  in  his  own  country,  jury  duty,  extraordinary 
taxes,  and  all  accidents  of  national  life,  such  as  riots,  war,  etc.  By 
reason  of  his  alienage,  he  escapes  the  mo'st  burdensome  of  these  duties 
in  the  country  of  his  domicil  and  is  only  slightly  affected  by  the  calam- 
ities of  local  life,  having  often,  indeed,  as  has  been  proved  by  Latin 
American  experience,  a  claim  to  preferential  treatment  on  the  as- 
sumed ground  of  the  negligence  of  the  national  government  in  per- 
mitting a  revolution  to  arise,  or  in  not  suppressing  it.' 

Domiciled  aliens  like  transient  aliens  are  protected  by  their  national 

governments  against  ill-treatment,  arbitrary  proceedings  or  irregular 

exercise  of  the  rights  of  local  authorities,  denial  of  justice  or  violation 

of  treaties  or  the  principles  of  international  law.    By  the  law  of  1907, 

the  United  States  has  sought,  in  the  case  of  naturalized  citizens,  to 

prevent  any  unfair  claim  upon  its  protection  by  withdrawing  it  on 

evidence  (rebuttable  on  specific  grounds)  of  a  limited  residence  abroad — 

two  years  in  the  country  of  nativity,  or  five  years  in  any  other  country.* 

duties.  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Wing,  April  6,  1871,  Moore's  Dig.  IV,  58. 
See  also  Pomeroy,  op.  cil.  249. 

1  Sup-a,  p.  68.    See  also  Lomonaco,  op.  cit.,  218;  Fiore,  op.  cil.,  §  647.  ^ 

2  Pradier-Fodere,  op.  cil.  Ill,  §  1373. 

^  Infra,  §97.  Lisboa,  Les  fonctions  diplomatiques,  p.  190;  Pradier-Fodere, 
III,  §  1371.  Mr.  Seward,  however,  declined  to  extend  protection  to  permanently 
domiciled  ahens  (citizens  of  the  U.  S.)  in  the  Panama  Riot  claims.  British  NaturaU- 
aation  report,  App.  64.    See  also  infra,  §  326. 

*  Infra,  §§  242,  330. 


94  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

As  applied  to  native  citizens,  protection  is  still  extended  notwith- 
standing foreign  domicil,  though,  as  will  be  seen  hereafter,  that  is 
taken  into  account  in  determining  both  the  title  to  and  the  extent 
of  protection.  One  of  the  justifications  for  such  protection  in  the  case 
of  citizens  domiciled  abroad  is  the  fact  that  having  no  political  share 
in  the  government  of  their  domicil,  they  are  denied  that  expression 
of  disapproval  and  privilege  of  bringing  about  a  change  of  adminis- 
tration which  native  citizens  enjoy,  and  that  ultimate  foreign  protection 
is  the  only  sanction  that  they  have  for  asserted  rights.  A  freer  exten- 
sion of  poUtical  rights  to  domiciled  aliens  without  an  attempt  to  im- 
pose local  citizenship  upon  them  would  remove  one  important  element 
of  justification  for  foreign  intervention  in  Latin  America. 

§  41.  Subjection  to  Territorial  Law. 

In  return  for  the  protection  of  person  and  property  which  by  mu- 
nicipal law  and  treaty  the  country  of  residence  assures  to  the  alien, 
he  owes  obedience  to  the  local  law  or  what  has  been  called  "temporary 
allegiance"  to  the  state.^  This  rule  applies  to  the  persons  and  property 
of  aliens  entering  the  territory,  and  from  it  only  certain  privileged 
classes  of  aliens  are  exempt.  These  include  foreign  sovereigns  and 
diplomatic  officers,  foreign  public  ships,  and  in  the  case  of  countries 
in  which  extraterritorial  privileges  are  exercised,  aliens  governed 
by  the  so-called  capitulations  or  special  treaties.  By  treaty,  states 
usually  provide  that  their  consuls  shall  have  a  Umited  jurisdiction 
over  their  merchant  vessels  in  matters  not  affecting  the  peace  of  the 
port.^  An  involuntary  entrance  of  a  vessel,  under  duress  or  by  stress 
of  weather,  has  been  held  not  to  be  such  a  submission  to  local  law 
as  would  properly  incur  the  imposition  of  local  penalties,^  The  plen- 
itude of  territorial  jurisdiction  and  the  submission  of  aliens  to  local 

'  Sec'y  of  State  Webster  in  Thrasher's  case,  Webster's  Works,  VI,  524;  Carlisle  v. 
U.  S.,  16  Wall.  147;  Wharton's  Dig.  II,  §  203;  Moore's  Dig.  IV,  9-17.  See  also 
Pradier-Fod6r6,  op.  cit.  I,  §  403;  III,  §  1365;  Lomonaco,  op.  cU.,  217;  Despagnet, 
Dr.  int.  public,  §  342;  Cockburn,  Nationahty,  139;  Gushing  in  7  Op.  Atty.  Gen.  229, 
235. 

2  Moore's  Dig.  II,  272  et  seq. 

*  Gases  referred  to  in  Moore's  Dig.  II,  339  et  seq.,  and  The  Alliance  (U.  S.)  v. 
Venezuela,  Feb.  17,  1903,  Ralston,  29,  32. 


SUBJECTION   TO   TERRITORIAL   LAW  95 

law  will  be  considered  under  two  of  its  most  important  aspects,  taxa- 
tion and  criminal  jurisdiction. 

The  power  to  impose  taxes  is  an  attribute  of  sovereignty,  and  where 
the  person  or  the  property  in  question  is  a  proper  subject  of  taxation 
the  species  of  tax  and  its  amount  is  left  to  the  government  exercising 
the  power.  So  long  as  the  tax  is  uniform  in  operation  and  may  fairly 
be  considered  a  tax  and  not  a  confiscation  or  unfair  imposition,  no 
successful  representation  can  be  made  to  a  foreign  government  on 
behalf  of  the  aliens  affected.  Complaints  of  excessive  taxation  are 
properly  questions  for  submission  to  local  courts.^  Unjust  or  illegal 
exactions  cannot,  however,  be  enforced  under  the  disguise  of  taxa- 
tion.^ The  territoriality  of  taxation  has  been  adopted  as  a  practically 
universal  principle,  the  tax  affecting  property  or  person  in  the  terri- 
tory or  transactions  there  undertaken.  The  alien  is  properly  subject 
to  the  ordinary  industrial,  excise,  internal  revenue  and  license  taxes 
and  duties  and  to  property  and  income  taxes. ^  The  transient  alien, 
however,  is  internationally  exempt  from  personal  taxes.  ^ 

In  the  absence  of  treaty,  foreigners  may  be  more  heavily  taxed 
than  nationals,  but  at  the  present  day,  if  not  by  statute  then  by  treaty, 
the  alien  has  generally  been  secured  against  any  discrimination  in 
taxation  as  against  the  native  inhabitant.^    The  alien  is  often  required 

1  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Davis,  min.  to  Germany,  Nov.  21,  1874,  Moore's 
Dig.  IV,  20;  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Cox,  min.  to  Turkey,  Nov.  11,  1885, 
For.  Rel.,  1885,  878;  Sec'y  of  State  Hay  to  Mr.  Harris,  amb.  to  Austria  (case  of 
H.  M.  Braem),  For.  Rel.,  1899,  48,  50.  See  other  state  papers  in  Moore's  Dig.  IV, 
20  et  seq.  and  II,  55  et  seq. 

2  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Mantilla,  Jan.  11,  1876,  Moore's  Dig.  IV,  21. 

'  Heffter  (Geffcken-Bergson)  op.  cit.,  §  62,  pp.  142-145.  Des  bases  legitimes  dea 
imp6ts  en  droit  international  by  E.  Lehr,  35  R.  D.  I.  (1903),  547-555. 

*  The  imposition  of  a  head  tax  on  immigrants  or  a  tax  on  sojourn,  which  some 
countries  still  exact,  is  not  in  derogation  of  this  principle.  Heffter,  op.  cit.,  144; 
Mr.  Porter  to  Mr.  Emmet,  min.  to  Turkey,  June  8,  1885,  For.  Rel.,  1885,  848.  The 
resident  alien,  even  though  not  domiciled,  is  subject  to  personal  taxes  in  France, 
and  probably  in  other  countries.  Decision  of  the  Conseil  d'Etat,  Despagnet,  Dr. 
int.  prive,  131. 

*  Certain  kinds  of  foreign  business  concerns,  particularly  life  insurance  companies, 
have  occasionally  been  discriminated  against  in  taxation  and  other  ways,  even  in 
the  United  States.  In  a  recent  case,  the  federal  government  declined  to  interfere 
with  state  legislation  in  Iowa,  Missouri  and  Nebraska  taxing  foreign  insurance  com- 
panies more  heavily  than  national  companies — this  notwithstanding  treaties  by 


96  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

to  pay  special  taxes,  for  sojourn,  for  license  to  do  business  or  for  other 
reasons.  ^  If  the  taxes  are  reasonable  and  apply  uniformly  to  all  aliens, 
foreign  governments  recognize  the  legality  of  the  practice.  It  may  be 
justified  as  compensation  for  an  escape  from  certain  political  burdens. 
A  discrimination  against  the  nationals  of  one  or  more  countries  alone 
would  be  an  unfriendly  act,  and  give  rise  to  diplomatic  or  more  force- 
ful measures. 

The  matter  of  double  taxation,  while  largely  adjusted  by  statute  or 
treaty,  occasionally  presents  interesting  problems.  Thus,  France  taxes 
stocks  and  bonds  in  France,  regardless  of  who  owns  them,  whereas 
Switzerland  taxes  the  income  of  residents  from  whatever  source  de- 
rived. Cases  of  double  taxation  are  becoming  less  frequent,  as  mu- 
nicipal legislation  recognizes  the  injustice  of  the  practice.^  If  the  tax 
is  exorbitant,  so  that  it  necessarily  will  result  in  driving  aliens  out  of 
business,  foreign  governments  will  protest.  A  successful  protest  was 
rasied  against  the  proposed  enforcement  of  a  Haitian  law  of  1876  which 
would  have  had  this  effect.^ 

§  42.  Criminal  Proceedings. 

It  is  a  general  principle  of  international    law  that  every  nation, 

which  Belgian  and  Swiss  companies  were  in  a  more  favorable  position  than  others. 
The  United  States  answered  a  British  protest  by  referring  the  British  companies  to 
the  courts  if  they  considered  a  treaty  to  have  been  violated,  but  declined  to  conclude 
a  treaty  by  which  the  freedom  of  state  legislation  might  be  hampered.  For.  Rel., 
1899,  345-348.  See  also  H.  T.  Kingsbury  in  1911  Proceeding  of  the  Amer.  Soc.  of  Int. 
Law,  215-218. 

*  In  Maine,  statutes  prescribing  pedler's  licenses  for  aliens  were  held  unconstitu- 
tional as  a  discrimination  between  aliens  and  citizens.  State  v.  Montgomery,  94  Me. 
192;  State  v.  Mitchell,  97  Me.  66. 

2  Lehr  in  12  R.  D.  I.  (1880),  108  and  28  Clunet  (1901),  722;  14  to  22  Annuaire  of 
the  Institute,  and  supra,  p.  22,  note  3. 

^  Haiti  at  various  times  has  imposed  discriminatory  taxes  and  other  conditions 
upon  foreigners.  The  United  States  on  numerous  occasion  (1876,  1893,  1897,  1903 
and  f)thers)  has  protested  against  these  discriminations  (which  were  usually  directed 
against  foreign  business),  particularly  as  the  treaty  of  Nov.  3,  1864  provided  for 
equality  in  taxation.  For.  Rel.,  1904,  371-384;  For.  Rel.,  1907,  728-742.  The 
last  i)rotost  was  made  after  the  abrogation  of  the  treaty.  It  appears  to  have  been 
successful.  A  small  license  fee  on  foreigners  engaged  in  business  was  apparently  not 
objected  to.  See  also  decision  of  Day,  arbitrator,  in  Metzger  (U.  S.)  v.  Haiti,  Oct.  18, 
1899,  For.  Rel.,  1901,  262,  272. 


CRIMINAL    PROCEEDINGS  97 

whenever  its  laws  are  violated  by  anyone  owing  obedience  to  them, 
whether  citizen  or  ahen,  has  a  right,  free  from  the  interference  of  other 
states,  to  inflict  the  penalties  incurred  by  the  transgressor  if  found 
within  its  jurisdiction,  provided  that  the  laws  themselves,  the  methods 
of  administering  them,  and  the  penalties  prescribed  are  not  in  deroga- 
tion of  civilized  codes.  ^ 

The  criminal  procedure  of  foreign  countries  frequently  contains 
harsh  features  and  is  deficient  in  many  safeguards  which  American 
law  provides  for  the  benefit  of  the  accused.  This  constitutes  no  ground 
for  diplomatic  complaint,  the  right  of  the  United  States  or  other  foreign' 
country  being  confined  to  a  demand  that  its  citizen  be  given  the  full 
and  fair  benefit  of  the  system  which  does  exist,  without  discrimina- 
tion as  against  natives  or  other  aliens.^  An  alien  must  submit  to  the 
inconvenience  of  proceedings  that  may  be  brought  in  accordance 
with  law  upon  any  ho7ia  fide  charge  that  an  offense  has  been  com- 
mitted, even  though  the  charge  may  not  be  sustained.^  On  this  ground 
the  claims  of  innocent  citizens  of  the  United  States  arrested  in  foreign 
countries  on  suspicion  of  having  violated  the  local  law  are  usually 
rejected,^  Even  when  a  conviction  by  a  lower  court  is  reversed,  for 
error,  by  an  appellate  court,  there  is  no  foundation,  legally,  for  an  inter- 
national claim,  although  equitable  considerations  might  lead  to  a 
moral  request  for  indemnification  on  account  of  incidental  imprison- 

'  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Jackson,  charge  at  Vienna,  Austria,  Jan.  10, 
1854,  Moore's  Dig.  II,  88;  Bullis  (U.  S.)  v.  Venezuela,  Feb.  13,  1903,  Morris'  Report, 
Sen.  Doc.  317,  58th  Cong.  2nd  sess.,  375-376. 

2  Mr.  Marcy,  Sec'j'  of  State,  to  Mr.  Jackson,  charge  at  Vienna,  Apr.  6, 1855,  Moore's 
Dig.  II,  89;  VI,  275.  See  state  papers  quoted  in  Moore's  Dig.  II,  90  et  seq.;  VI, 
273  et  seq.  and  Tchernoff,  op.  cit.,  504.  See  also  the  illuminating  opinions  in  In  re 
Neely,  103  Fed.  626  and  in  Neely  v.  Henkel,  180  U.  S.  109  (by  Justice  Harlan). 

3  Elihu  Root  in  4  A.  J.  I.  L.  (July,  1910),  527.  See  Trumbull  (Chile)  v.  U.  S., 
Aug.  7,  1892,  Moore's  Arb.  3255-3261,  and  the  following  cases  before  the  U.  S.- 
Mexican commission  of  July  4,  1868:  Collier  (ibid.  3244),  Atwood  (ibid.  3249), 
Cramer  (ibid.,  3250).  See  also  decision  of  Hamburg  Senate  in  case  of  White  (Gt. 
Brit.)  V.  Peru  (1864),  Moore's  Arb.  4967.  See  also  La  Forte  (Gr.  Brit.)  v.  Brazil, 
Jan.  5,  1863,  ibid.  4925,  and  claim  of  Higginson  v.  Peru,  Baty,  164;  Pittard,  Protec- 
tion des  nationaux,  250;  Martens,  Traite,  III,  141. 

*  E.  g.,  Mix  case  v.  Austria,  For.  Rel.,  1894,  23-26;  Mr.  Marcy  to  Mr.  Richter, 
Feb.  21,  1854,  Wharton's  Dig.  II,  515;  Hannam  (U.  S.)  v.  Mexico,  July  4,  1868 
Moore's  Arb.  3243. 


98  THE   DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

ment.  The  judicial  proceedings,  however,  must  be  regular  and  con- 
ducted in  good  faith  and  in  accordance  with  the  law  and  with  the 
forms  of  civilized  justice,  and  must  not  be  arbitrary  or  unnecessarily 
harsh  or  discriminate  against  the  alien  on  account  of  his  nationality.^ 
No  violation  of  law  on  his  part  will  deprive  the  alien  of  this  limited 
protection  of  his  government,  which  has  the  right  to  insist  that  he 
shall  be  tried  and  punished  in  accordance  with  law.  President  Cleve- 
land in  his  annual  message  of  1886  thus  expressed  the  principle: 

"When  citizens  of  the  United  States  voluntarily  go  into  a  foreign 
country  they  must  abide  by  the  laws  there  in  force,  and  will  not  be  pro- 
tected by  their  own  government  from  the  consequences  of  an  offense 
against  those  laws  committed  in  such  foreign  country;  but  ...  if 
charged  with  crime  committed  in  the  foreign  land  a  fair  and  open  trial, 
conducted  with  decent  regard  for  justice  and  humanity,  will  be  de- 
manded for  them.  With  less  than  that  this  government  will  not  be 
content  when  the  life  or  liberty  of  its  citizens  is  at  stake."  ^ 

The  representatives  of  foreign  governments  often  undertake  by  active 
attendance  to  watch  criminal  proceedings  in  which  their  countrymen 
are  parties  in  interest.^  On  various  occasions  in  the  diplomatic  his- 
tory of  the  United  States  claims  have  been  successfully  prosecuted 
by  the  Department  of  State  or  allowed  by  international  commissions 
on  the  following  grounds:  ^  Unjust  or  unlawful  arrest  or  detention;  -' 

>  Extracts  quoted  in  Moore's  Dig.  VI,  698  and  273-285.  Ballenger  (U.  S.)  v. 
Mexico,  July  4,  1868,  Moore's  Arb.  3243;  Van  Bokkelen  (U.  S.)  v.  Haiti,  May  24, 
1888,  ibid.  1807. 

2  Annual  Message,  Dec.  6,  1886,  For.  Rel.,  1886,  vii. 

'  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Jackson,  min.  to  Mexico,  July  26,  1886, 
Moore's  Dig.  VI,  281. 

^  It  may  be  here  noted  that  international  tribunals  have  generally,  in  the  absence  of 
a  prohibition  in  the  protocol,  assumed  the  right  to  pass  independently  upon  the  jus- 
tifiability of  an  arrest  and  the  legality  of  the  incidental  and  subsequent  proceedings. 
Shaver  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3285;  Canty  (Gt.  Brit.)  v. 
U.  S.,  iMd.  3309. 

<*  Pratt  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3280-3282;  Jonan  (U.  S.)  v. 
Mexico,  July  4,  1868,  Moore's  Arb.  3251;  Patrick  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871, 
Moore's  Arb.  3287  (charge  without  foundation,  though  released  after  brief  detention); 
Underbill  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  45,  51;  Shaw  (Gt.  Brit.)  v. 
France,  1883,  19  Hertslet's  Comm.  Treaties,  201-203.  Claims  have  often  been  en- 
forced on  account  of  the  unlawful  detention  of  vessels.  See,  e.  g.,  John  S.  Bryan 
(U.  S  )  V.  Brazil,  Oct.  15,  1842,  Moore's  Arb.  4613;  Whahng  vessels  (U.  S.)  «;.  Russia, 


CRIMINAL   PROCEEDINGS  99 

unduly  harsh  or  oppressive  or  unjust  treatment  during  arrest,  deten- 
tion, trial  or  imprisonment,  whether  the  accused  was  guilty  or  not;  ^ 
unnecessarily  long  detention  or  undue  or  needless  delay  in  trial ;^ 
a  punishment  disproportionate  in  severity  to  the  offense  charged;^ 
a  violation  of  municipal  law  or  treaty;''  lack  of  jurisdiction  on  the 

Aug.  26,  1900,  For.  Rel.,  1902,  App.  I;  Col.  Lloyd  Aspinwall  (U.  S.)  v.  Spain,  1870, 
Moore's  Arb.  1007,  1014;  Good  Return  (U.  S.)  v.  Chile,  Dec.  6,  1873,  ibid.  1466 
(note);  Phare  (France)  v.  Nicaragua,  Oct.  15,  1879,  ibid.  4870;  Lottie  May  (Gt. 
Brit.)  V.  Honduras,  March  20,  1899,  For,  Rel.,  1899,  371;  Masonic  (U.  S.)  v.  Spain, 
Feb.  28,  1885,  Moore's  Arb.  1055,  1062.    See  also  Moore's  Dig.  VI,  §§  1011-1012. 

But  an  arrest  or  detention,  even  though  charge  is  not  proved,  gives  rise  to  no 
claim  unless  there  is  evidence  of  malice  or  lack  of  probable  cause  or  disregard  of  due 
process  of  law.  Borden  (U.  S.)  i'.  Chile,  Aug.  7,  1892,  Moore's  Arb.  3261-3265; 
Horatio  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  ibid.  3026. 

» Baldwin  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  3235-3240;  Gahagan 
(U.  S.)  V.  Mexico,  ibid.  3240;  Bolles  &  Christian  (U.  S.)  v.  Mex.,  Mar.  3,  1849,  ibid. 
3242;  Barnes  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3247;  Nautilus,  etc.,  Co.  (U.  S.) 
V.  Mexico,  ibid.  3251;  Griffin  (U.  S.)  v.  Spain,  Feb.  12,  1871,  ibid.  3252;  Cabias,  ibid. 
3253;  Edwards,  ibid.  3268;  Strong,  ibid.  3269;  McKeown,  ibid.  3311;  Powers,  ibid. 
3274;  Van  Bokkelen  (U.  S.)  v.  Haiti,  May  24,  1888,  ibid.  1807.  Cases  before  Spanish 
Treaty  Claims  Com.,  Final  Report,  May  2,  1910,  p.  14. 

Mr.  Buchanan,  Sec'y  of  State,  to  Mr.  Campbell,  Dec.  11,  1848,  Moore's  Dig.  VI, 
274  (holding  U.  S.  citizen  "incommunicado"  in  Cuba);  Mr.  Conrad,  Acting  Sec'y 
of  State,  to  Mr.  Peyton,  Oct.  12,  1852,  Moore's  Dig.  VI,  275  (refusal  to  hear  testi- 
mony on  behalf  of  defendant).  Cases  of  U.  S.  citizens  arrested  in  Guatemala,  For. 
Rel.,  1894,  302-315  (not  served  with  warrants  or  informed  of  charges  against  them; 
not  permitted  to  see  consul's  messenger;  gross  irregularities  in  procedure).  Sol.  Gen. 
Richards,  Feb.  7,  1898  in  case  of  Culleton  (U.  S.)  v.  Colombia,  22  Op.  Atty.  Gen.  32; 
Baty,  op.  cit.,  118-122,  and  Moore's  Dig.  VI,  §  1012. 

-  Rahming,  Eneas  and  Binney  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3282; 
Nautilus,  etc.,  Co.  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3251;  Barnes  (U.  S.)  v.  Mex- 
ico, ibid.  3247;  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Ryan,  min.  to  Mexico,  June  28, 
1890,  Moore's  Dig.  VI,  281. 

3  Baldwin  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  3235-3240;  Halstead 
(U.  S.)  V.  Mexico,  July  4,  1868,  ibid.  3243;  Montgomery  (U.  S.)  v.  Spain,  Feb.  12, 
1871,  ibid.  3272;  Le  More  (France)  v.  United  States,  Jan.  15,  1880,  ibid.  3313. 

<  Moliere  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  3252;  Reading  (Gt.  Brit.) 
«'.  U.  S.,  May  8,  1871,  ibid.  3283,  3285;  Brito  (U.  S.)  v.  Spain,  Feb.  12,  1871,  ibid. 
3252;  Jones  (U.  S.)  v.  Spain,  ibid.  3253  (excessive  bail);  De  Luna  (U.  S.)  v.  Spain, 
ibid.  3276;  Lowe  (U.  S.)  v.  Spain,  ibid.  3270;  Montejo  (U.  S.)  v.  Spain,  ibid.  3277; 
Mevs  case  v.  Haiti,  For.  Rel.,  1893,  pp.  358,  378,  381 ;  Master  of  Russian  bark  Hans  v. 
U.  S.,  President's  message,  Dec.  5,  1898,  For.  Rel.,  1898,  Ixxxi,  31  Stat.  L.  1010; 
Van  Bokkelen  v.  Haiti  (imprisonment  in  violation  of  treaty)  Moore's  Dig.  VI,  §  1013. 
Cases  before  Spanish  Treaty  Claims  Commission,  Final  Report,  14. 


100  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

part  of  the  trial  court, ^  or  in  general  a  denial  of  justice.^  A  deten- 
tion and  discharge  without  trial  throws  the  burden  on  the  government 
to  show  due  process  of  law,  and  in  the  absence  of  such  proof,  inter- 
national tribunals  have  allowed  damages.^  While  military  law,  op- 
erating in  time  of  war  only,  gives  military  officers  and  courts  a  greater 
discretion  in  the  matter  of  arrest,  detention  and  imprisonment  than 
is  accorded  to  civil  authorities  in  time  of  peace,  they  must  neverthe- 
less comply  with  the  requirements  of  due  process  of  law.'*  Treaties 
usually  provide  for  due  process  of  law  in  the  litigation,  civil  or  criminal, 
to  which  the  respective  citizens  of  the  contracting  states  are  parties, 
by  stipulating  for  free  access  to  courts,  formal  charges,  an  opportunity 
to  be  heard,  to  employ  counsel,  to  examine  witnesses  and  evidence, 
and  a  guaranty  of  essential  safeguards  against  a  denial  of  justice.  In 
the  absence  of  unduly  harsh  or  arbitrary  treatment  by  an  authority 
of  the  state,  claimants  are  expected  to  resort  to  their  local  remedies 
against  the  persons,  often  minor  police  officers,  who  have  been  guilty 
of  the  wrongful  arrest  or  false  impnsonment.'^ 

The  decision  of  a  foreign  tribunal  against  a  citizen  of  the  United 
States  on  criminal  charges  will  only  be  protested  against  on  the  fol- 
lowing broad  grounds: 

"(1)  Undue  discrimination  against  the  petitioner  as  a  citizen  of  the 
United  States  in  breach  of  treaty  obligations,  or 

"  (2)  Violation  of  those  rules  for  the  maintenance  of  justice  in  judicial 
enquiries  which  are  sanctioned  by  international  law."* 

1  Carmody  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3287;  Le  More  (France) 
V.  U.  S.,  Jan.  1.5,  1880,  ibid.  3313;  and  other  cases  in  Moore's  Arb.  3280  et  seq. 

2  Infra,  §  129. 

» Stovin  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3283;  Canty  (Gt.  Brit.)  ;;. 
U.  S.,  ibid.  3309;  Barnes  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3247. 

*  See  cases  reported  in  Moore's  Arb.  3265  et  seq.;  see  especially  the  elaborate  dis- 
senting opinion  of  Aldis,  commissioner,  in  the  French-United  States  commission 
f)f  January  1.5,  1880,  in  Dubos'  case,  Moore's  Arb.  3323  et  seq.  The  same  rule  pre- 
vails in  cases  of  martial  law.  Moore's  Dig.  II,  §  196;  VI,  §§  1016-1017;  Rowland's 
Digest  of  Opinions  of  Judge  Advocates  General,  1078-1081. 

*  Oberlander  &  Messenger  (U.  S.)  v.  Mexico,  March  2,  1897,  For.  Rel.  1897,  382, 
388.  Warren's  case,  Moore's  Dig.  VI,  661;  case  in  England,  ibid.,  670;  Waller's 
case,  ibid.,  670;  cases  in  Honolulu,  ibid.,  671,  and  other  cases,  ibid.,  §  987. 

«  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Morrow,  February  17,  1886,  Moore's  Dig.  VI, 
280;  II,  92. 


CRIMINAL   PKOCEEDINGS  101 

As  a  general  rule,  it  may  be  said  that  the  right  to  protest  against  legal 
proceedings  abroad  and  even  against  errors  of  foreign  courts  can  only 
be  based  upon  an  allegation  of  a  denial  of  justice.^  Mr.  Marcy  ex- 
pressed this  principle  as  follows : 

"  If  a  native-born  citizen  of  the  United  States  goes  into  a  foreign  coun- 
try and  subjects  himself  to  a  prosecution  for  an  offense  against  the  laws 
of  that  country,  this  Government  can  not  interfere  with  the  proceedings, 
nor  can  it  claim  any  right  to  revise  or  correct  the  errors  of  such  proceed- 
ings, unless  there  has  been  a  willful  denial  of  justice,  or  the  tribunals 
have  been  corruptly  used  as  instruments  for  perpetuating  wrong  or  out- 
rage." 2 

The  wilUngness  of  foreign  governments  to  permit  this  practically 
unrestricted  jurisdiction  to  be  exercised  by  local  courts  over  their 
citizens  abroad  is  predicated  upon  the  existence  of  certain  conditions: 

1.  The  existence  of  regular  courts  and  of  laws  assuring  to  the  alien 
the  administration  of  civilized  justice,  on  terms  of  equality  with  na- 
tionals. 

2.  The  independence  of  the  courts,  and  an  assurance  of  their  im- 
partiality and  good  faith. 

3.  The  justiciability  of  the  case  before  the  law  courts. 

4.  The  competency  of  the  courts  and  their  inclination  to  pass  upon 
the  case  without  unnecessary  delay. 

5.  Respect  of  the  local  government  for  the  decisions  of  its  own 
courts.^ 

To  the  general  rule  that  the  criminal  jurisdiction  of  a  state  is  limited 
to  offenses  committed  within  its  territory,  or  if  committed  abroad, 
to  offenses  of  its  own  citizens,  certain  states  by  municipal  law  have 
made  important  exceptions  by  undertaking  to  punish  aliens  for  crimes 
committed  abroad.  The  pretension  to  this  jurisdiction  lacks  both 
a  territorial  basis  in  the  locality  of  the  crime  and  a  personal  basis 
in  the  nationality  of  the  accused.  It  is  disapproved  by  the  United 
States  and  Great  Britain,  and  in  1886  the  attempt  of  Mexico  to  en- 

'  As  will  be  seen  hereafter  {infra,  §  127  et  seq.  doubt  and  uncertainty  arise  only 
in  the  application  of  the  rule. 

'  Mr.  Marcy,  Secretary-  of  State,  to  Baron  de  Kalb,  July  20,  1855,  Moore's  Dig. 
IV,  11. 

*  Leval,  G.  de,  La  protection  diplomatique,  Bruxellea,  1907,  pp.  93-98. 


102  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

force  it  in  the  Cutting  case  became  the  subject  of  a  sharp  diplomatic 
controversy.^  The  claim  to  such  jurisdiction,  which  in  some  form 
is  found  in  the  penal  codes  of  most  civil  law  countries,  is  founded  upon 
the  relation  between  the  offense  and  the  welfare  of  the  state  or  its 
nationals,  so  that  self-defense  is  by  these  countries  invoked  in  its  sup- 
port. Most  of  them  undertake  to  prosecute  aUens  who,  while  abroad, 
have  committed  crimes  against  the  safety  of  the  state  or  have  coun- 
terfeited its  seal  or  currency.-  Only  a  few  go  so  far  as  to  punish  crimes 
committed  abroad  against  subjects  of  the  state,^  which  assertion  of 
extraterritorial  jurisdiction  is  too  extensive  to  command  general 
acquiescence. 

Extradition  treaties  exemplify  the  mutual  cooperation  of  states 
to  prevent  offenders  from  escaping  the  penalty  of  crime  by  depart- 
ure from  the  territorial  jurisdiction. 

§  43.  Limitations  upon  Territorial  Jurisdiction — Extraterritoriality. 

There  is  also  an  exception,  in  the  case  of  certain  oriental  countries, 
to  the  rule  that  aliens  are  under  the  complete  territorial  jurisdiction 
of  the  state  of  residence.  Owing  to  the  deficient  civilization  of  these 
countries  and  fundamental  differences  in  law  and  social  habits,  the 
countries  of  European  civilization  have  stipulated  for  a  certain  ex- 
emption for  their  citizens  from  the  operation  of  local  law.    This  con- 

'  Cutting  was  finally  released  (though  Mexico  contested  the  right  of  the  United 
States  to  interpose  in  his  behalf),  because  the  Mexican  plaintiff  withdrew  his  action 
for  libel,  committed  in  the  United  States. 

On  the  Cutting  case,  see  Mr.  Moore's  able  "Report  on  extraterritorial  crime," 
Washington,  1887,  which  contains  an  exhaustive  discussion  of  the  whole  subject. 
See  also  Moore's  Dig.  II,  §§  200-202;  RoUn  in  20  R.  D.  I.  (1888),  559;  HaU,  207; 
Westlake,  I,  261-263;  Oppenheim,  I,  203-205. 

2  E.  g.,  France,  Germany,  Austria,  Belgium,  Netherlands,  Switzerland,  Hungary, 
Italy,  Luxemburg,  Greece,  Norway,  Sweden,  Russia,  Spain  and  Brazil;  but  not 
Denmark,  Portugal  or  Great  Britain.  Moore's  Dig.  II,  258;  Hall,  207-208.  The 
Institute  of  International  Law  approves  this  legislation,  but  adds  to  the  condition 
that  the  "acts  contain  an  attack  upon  [the  state's]  social  existence  or  endanger  its 
security,"  the  further  condition  "when  they  are  not  provided  against  by  the  criminal 
law  of  the  territory  where  they  take  place."    7  Annuaire,  156-157. 

'  E.  g.,  Greece,  Mexico  and  Russia  and  under  various  conditions  and  limitations, 
Austria,  Hungary,  Italy,  Brazil,  Sweden  and  Norway.  This  was  the  question  in- 
volved in  the  Cutting  case. 


LIMITATIONS    UPON    TERRITORIAL   JURISDICTION  103 

dition  is  called  extraterritoriality.  By  treaty  or  custom  these  countries 
have  surrendered  a  considerable  portion  of  their  jurisdiction  over 
aliens  to  the  states  of  European  civilization,  who  exercise  jurisdiction 
over  their  own  nationals  by  courts  and  authorities  established  and 
regulated  by  their  own  municipal  legislation.^  Jurisdiction  is  usually 
exercised  by  the  consuls  or  diplomatic  officers  of  the  foreign  states 
and,  except  in  Turkey,  it  is  customarily  confined  to  persons  of  their 
own  nationality.  While  the  system  in  practically  all  of  the  extra- 
territorial countries  rests  upon  treaty,  in  the  Ottoman  empire  it  is 
based  upon  custom  and  certain  treaties  called  Capitulations.^  This 
explains  the  fact  that  consuls  of  treaty  powers  in  Turkey  may  exercise 
jurisdiction  and  grant  protection  to  nationals  of  other  treaty  powers 
or  even  of  non-treaty  powers,  which  in  other  extraterritorial  countries 
they  cannot  do.^  The  countries  still  under  extraterritoriality,  from 
which  class  Japan  has  only  recently  emerged,  are  China,  Morocco, 
Muscat,  Persia,  the  Barbary  states,  Siam,  Egj'pt,  Turkey,  Bulgaria,  and  a 

1  The  statutes  of  the  United  States  began  with  the  act  of  August  11,  1848,  9  Stat. 
L.  276.  The  statutes  are  now  consolidated  in  §§  4083^130,  Revised  Statutes.  See 
Moore's  Dig.  II,  613  et  seq.;  U.  S.  Consular  Regulations  (1896),  §§  612-653;  Instruc- 
tions to  Diplomatic  Officers  of  the  U.  S.  (1897),  §§  200-240,  p.  79  et  seq.  In  Great 
Britain,  foreign  jurisdiction  is  now  governed  by  the  Foreign  Jurisdiction  Act  of  1890, 
53  &  54  Vict.  c.  37.  See  Piggott,  F.,  ExterritoriaUty,  Hong  Kong,  1907;  Hall,  Foreign 
powers  and  jurisdiction,  §  59  et  seq.  The  treaty  provisions  of  the  U.  S.  are  found  in 
Moore,  Extradition,  Boston,  1891,  I,  100,  note  5;  the  British  treaty  provisions  in 
the  Appendix  to  Piggott,  op.  cit.,  273  et  seq. 

*  Pelissi^  du  Rausaa,  G.,  Le  regime  des  capitulations  dans  I'Empire  ottoman,  2d  ed., 
Paris,  1910-11,  2  v.;  Arminjon,  P.,  Strangers  et  proteges  dans  I'Empire  ottoman, 
Paris,  1903;  Rey,  F.,  De  la  protection  diplomatique  et  consulaire  dans  les  cchelles 
du  Levant  et  de  Barberie,  Paris,  1899;  Uber  die  Exterritorialitat  der  Auslander  in 
der  Tiirkei  mit  Riicksicht  auf  die  Gerichtsbarkeit  in  Civil  und  Strafprozessen,  by 
F.  Meyer.  1  Jahrbuch  fiir  Rechtswissenschaft,  1895,  pp.  95-190;  Turkish  capitula- 
tions and  the  status  of  British  and  other  foreign  subjects  residing  in  Turkey,  21  Law 
Quar.  Rev.  (1905),  408-425;  Hinckley,  Frank  E.,  American  consular  jurisdiction 
in  the  Orient,  Washington,  1906;  Brown,  Philip  M.,  Foreigners  in  Turkey;  their 
juridical  status,  Princeton,  1914.  Consular  jurisdiction  in  the  Levant  and  the  status 
of  foreigners  in  the  Ottoman  law  courts,  by  Travers  Twiss,  8th  Annual  Conference 
(1880)  of  the  Asso.  for  the  reform  and  codification  of  the  law  of  nations,  27-51.  Les 
Strangers  devant  les  tribunaux  consulaires  et  nationaux  en  Turquie,  by  E.  R.  Salem, 
18  Clunet  (1891),  393-425;  795-809;  Moore's  Dig.  II,  662  et  seq. 

*  Moore's  Dig.  II,  596  et  seq.;  Maria  Luz  (Peru)  v.  Japan,  Emperor  of  Russia, 
arbitrator,  Moore's  Arb.  5034-5036;  For.  Rel.,  1873,  I,  524r-553. 


104  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

few  minor  semi-barbarous  states.^  The  criminal  jurisdiction  of  consuls 
is  usually  limited  to  their  own  nationals;  natives  guilty  of  crimes  or 
injuries  against  foreigners,  must  as  a  rule  be  prosecuted  in  the  local 
courts.  The  extent  of  the  exemption  from  local  law  depends  almost 
entirely  upon  treaty,  and  may  differ  from  country  to  country  and 
with  respect  to  the  nationals  of  different  states.  The  system  of  pro- 
tectorates with  its  incidental  wide  foreign  jurisdiction  and  the  system 
of  mixed  courts,  e.  g.,  in  Morocco,  Tunis,  Tripoli,  Shanghai  and  other 
places,  is  a  phase  of  extraterritorial  jurisdiction. 

§  44.  Equality  of  Alien  and  National  not  always  Internationally  Suffi- 
cient. 
The  statement  is  frequently  made,  and  is  undoubtedly  true,  that  an 
alien  establishing  himself  abroad  must  normally  accept  for  his  protec- 
tion the  institutions,  whether  of  government  or  of  justice,  which  the 
inhabitants  of  the  state  find  suitable  to  themselves.  Foreigners,  there- 
fore, are  subject  to  the  local  courts  and  authorities,  and  not  to  separate 
jurisdictions,  and  their  own  governments  will  not  normally  interfere 
for  their  protection  so  long  as  they  enjoy  equal  treatment  with  natives.^ 

>  Moore's  Dig.  II,  §§  259-291,  pp.  593-7.55;  Sen.  Misc.  Doc.  89,  47th  Cong.  1st 
srss.,  memorandum  from  Secretary  of  State;  Heyking,  A.,  L'exterritorialite,  Berlin, 
1889;  Hinckley,  F.,  American  consular  jurisdiction  in  the  Orient,  Washington,  1906; 
Martens,  F.  F.,  Das  Consularwesen  u.  die  Consular  jurisdiction  im  Orient,  Berlin, 
1874;  Lippmann,  Die  Konsularjurisdiktion  in  Orient  (historical),  Leipzig,  1898; 
Ton-es  Campos,  M.,  Bases  de  una  legislaci6n  sobre  extraterritorialidad,  Madrid, 
1896;  Ravant-Bignon,  R.,  Du  droit  de  police  des  consuls  dans  les  pays  hors  chre- 
tiente,  Paris,  1905;  Rioche,  Y.,  Les  juridictions  consulaires  anglaises  dans  les  pays 
d'Orient,  etc.,  Paris,  1904.  See  also  for  Egypt,  Scott,  J.  H.,  The  law  affecting  foreign- 
ers in  Egypt,  Edinburgh,  1907;  Lamba,  H.,  De  revolution  de  la  condition  juridique 
des  Kuropeens  en  Egypte,  Paris,  1896;  for  China,  Koo,  V.  K.  W.,  The  status  of  aliens 
in  China,  New  York,  1912.  The  government  of  the  foreigners  in  China,  by  A.  M. 
Latter,  19  Law  Quar.  Rev.  (1903)  316-325.  Condition  des  ctrangers  en  Chine  by 
Tou  Fa  Sci(5,  2  R.  D.  I.  priv6,  1906,  110-120;  for  Morocco,  Saurin,  D.,  De  la  con- 
dition juridique  des  ctrangers  au  Maroc  au  point  de  vue  civil,  34  Clunet  (1907), 
.')-19;  284-294;  for  Persia,  La  condition  juridicjue  des  ctrangers  en  Perse,  by  James 
Greenfield,  34  Clunet  (1907),  257-272;  973-985;  Des  rapports  d'affaires  des  Europ6ens 
avec  la  Perse,  35  Clunet  (1908),  1064-1069;  for  Siam,  De  la  condition  jvu-idiquc  des 
ctrangers  et  dc;  I'organisation  judiciaire  au  Siam,  by  A.  Dauge,  27  Clunet  (1900), 
4r)l-477;  704-71();  De  la  condition  juridique  des  Strangers  au  Siam  by  G.  Padoux, 
35  Clunet  (1908),  693-713;  1037-1054. 

^  Westlake,  Chapters  on  international  law,  103;  Pradier-Fod6r6,  HI,  §  1365.    7  Op. 


EQUALITY    OF   ALIEN   AND    NATIONAL   NOT   SUFFICIENT  105 

This  principle  lias  become  of  special  importance  in  the  Latin-American 
countries,  where  exceptions  from  it  have  been  imposed,  on  occasion,  by 
the  exploiting  countries  of  the  Western  European  type.  The  weaker 
countries  of  Latin  America,  knowing  the  advantages  under  which  dip- 
lomatic protection  has  placed  aliens,  have  in  their  municipal  laws, 
constitutions  and  treaties  emphasized  the  legal  equality  which  exists 
as  between  national  and  alien.  ^  Relying  upon  this  presumably  liberal 
doctrine  of  complete  equalit}',  the  Latin- American  states  insist  upon  the 
application  of  the  general  principle  that  the  alien  is  bound  b}^  the  local 
law,  and  that  the  propriety  of  their  conduct  toward  resident  foreigners 
is  to  be  tested  by  their  municipal  laws. 

The  Pan-American  Conferences  of  1889  and  1901  passed  formal 
resolutions,  which  subsequently  found  their  way  into  constitutions 
and  statutes,  to  the  effect  that  foreigners  have  the  same  civil  rights  as 
the  citizens  of  the  nation  and  that  the  Latin-American  states  have 
not,  nor  do  they  recognize  in  favor  of  foreigners,  any  other  obligations 
and  responsibilities  than  those  which  by  their  laws  they  have  toward 
their  own  citizens.-  The  delegate  of  the  United  States  to  the  first 
Pan-American  Congress,  Mr.  Trescott,  declined  to  subscribe  to  this 
resolution  on  the  ground  that  it  gave  the  alien  "no  right  in  protec- 
tion of  his  interests  other  than  such  as  the  Government  may  have 
provided  in  the  waj'^  of  judicial  trial  or  executive  appeal  to  its  own 
citizens  and  this  principle  once  admitted,  of  course  there  follows  the 
absolute  exclusion  of  diplomatic  reclamation."  ^ 

The  L^nited  States  has  vigorously  opposed  the  attempt  of  the  Latin- 
American  countries  to  pass  upon  the  scope  of  their  international  duty. 
As  was  said  by  Secretary  of  State  Bayard,  in  1887: 

"If  a  government  could  set  up  its  own  municipal  laws  as  the  final 
test  of  its  international  rights  and  obligations,  then  the  rules  of  inter- 

Atty.  Gen.  229,  235  (Gushing).  Any  discrimination  against  the  alien,  e.  g.,  a  graver 
punishment  than  that  inflicted  upon  nationals,  prejudicial  irregularity  in  judicial 
proceedings,  violation  of  treaties  or  international  law,  constitutes  a  denial  of  justice 
and  opens  the  right  to  diplomatic  interposition. 

'  The  attempts  by  local  legislation  to  avoid  diplomatic  interposition  will  be  dis- 
cussed hereafter,  infra,  §  390  et  seq. 

■'  Alvarez  in  3  A.  J.  I.  L.  (1909),  329,  333. 

»  Report  of  the  delegate  in  Sen.  Ex.  Doc.  224,  Slst  Gong.  1st  sees.,  28-29. 


106  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

national  law  would  be  but  the  shadow  of  a  name,  and  would  afford  no 
protection  either  to  states  or  to  individuals.  It  has  been  constantly 
maintained  and  also  admitted  by  the  Government  of  the  United  States 
that  a  Government  can  not  appeal  to  its  mmiicipal  regulations  as  an 
answer  to  demands  for  the  fulfillment  of  international  duties."  ^ 

The  principle  that  equaUty  of  treatment  between  nationals  and 
aliens  releases  a  state  from  pecuniary  responsibility  for  injury  to  aliens 
is  conditioned  upon  the  fact  that  its  administration  of  justice  satisfies 
the  standard  of  civilized  justice  established  by  international  law.  For- 
eign states,  however,  undertake  to  judge  for  themselves  as  to  the  local 
state's  compliance  with  international  standards — a  defect  in  the  system 
which  arbitration  has  done  much  to  remedy. 

The  United  States  has  never  taken  the  position  that  one  who  ac- 
quires a  residence  in  a  foreign  country  does  so  at  his  peril  and  assumes 
the  risk  of  ill-treatment  or  injury  identically  with  citizens.-  Where 
a  state  does  not  normally  possess  or  is  not  disposed  to  employ  suffi- 
cient power  to  prevent  injury  to  the  alien,  the  state's  responsibility 
is  considered  as  established;  the  delinquency  may  occur  either  in  its 
legislative,  executive,  or  judicial  departments.^  One  reason  why  the 
alien  is  not  bound  to  submit  to  unjust  treatment  equally  with  nationals, 
against  which  the  national  has  no  judicial  redress,  is  because  the  latter 
is  presumed  to  have  a  pohtical  remedy,  whereas  the  alien's  inability 
to  exercise  pohtical  rights  deprives  him  of  one  of  the  principal  safe- 
guards of  the  rights  of  the  citizen.     For  this  reason  diplomatic  inter- 

>  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Connery,  Nov.  1, 1887,  For.  Rel.,  1887,  pp.  751, 
753.    See  also  C.  C.  Hyde  in  Proceedings  of  the  Amer.  Soc.  of  Int.  Law,  1911,  p.  36. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Buck,  min.  to  Peru,  Aug.  24,  1886,  Moore's 
Dig.  VI,  252,  in  case  of  U.  S.  citizen  Young  killed  in  Peru,  in  1884,  by  a  Peruvian 
soldier. 

'  C.  C.  Hyde,  in  Proceedings,  supra,  1911,  p.  33.  While  this  rule  is  frequently 
invoked  by  European  governments  against  the  states  of  Latin-America,  a  temporary 
lack  of  power  to  prevent  lawless  injury  to  aliens  is  not  a  good  legal  ground  to  invoke 
the  responsibility  of  the  state.  This  has  been  often  asserted  by  the  United  States 
in  mob  violence  cases  {infra,  §  91),  though  indemnities  have  generally  been  paid. 
In  times  of  civil  disturbance,  the  alien  like  the  national  should  be  compelled  to  bear 
the  necessary  and  incidental  consequences  of  such  conditions.  This  has  been  asserted 
by  the  United  States  in  times  when  civil  guarantees  were  suspended,  e.  g.,  during 
the  Civil  War.  Only  where  the  alien  is  discriminated  against,  by  direct  injury  or 
unreasonable  failure  to  prevent  it,  should  the  defense  of  civil  disturbance  be  rejected. 


TREATY   RIGHTS   OF   ALIENS    IN   THE    UNITED   STATES  107 

position  may  be  invoked  by  the  alien  for  the  enforcement  of  his  rights.^ 
The  alien,  therefore,  is  not  bound  to  accept  the  treatment  accorded 
to  nationals  if  such  treatment  is  in  violation  of  the  ordinary  principles 
of  civiUzed  justice,  and  notwithstanding  the  fact  that  the  national 
has  no  immediate  remedy  against  the  injustice. 

§  45.  Treaty  Rights  of  Aliens  in  the  United  States. 

The  inability  of  the  United  States  to  enforce  the  treaty  rights  of 
aliens  in  the  states  has  often  brought  about  diplomatic  controversies 
between  this  country  and  foreign  governments.  The  anomalous  situa- 
tion created  by  the  fact  that  the  states  of  the  Union  may  legislate 
with  reference  to  aliens  has  on  several  occasions  threatened  to  disturb 
the  friendly  relations  between  our  own  and  foreign  governments, 
and  the  incompetence  of  the  federal  government  under  existing  laws 
to  compel  state  officials  to  recognize  and  enforce  the  treaty  rights 
of  aliens  has  had  the  attention  of  Presidents  and  of  Congress  at  various 
times.  That  Congress  has  the  power  to  legislate  for  the  protection 
of  ahens  in  their  treaty  rights,  seems  unquestionable.^  Bills  have 
been  introduced  and  their  passage  urged  to  give  the  federal  courts 
jurisdiction  over  cases  involving  an  alleged  violation  of  the  treaty 
rights  of  aliens.^  On  several  occasions,  the  federal  government  has 
found  it  necessary  to  pay  foreign  claims  for  the  violation  by  the  states 
of  an  aUen's  treaty  rights,  largely  because  it  has  been  found  practically 
impossible,  owing  to  local  sentiment,  successfully  to  prosecute  the 
guilty  offenders  in  the  state  courts.^    The  pecuhar  situation  created 

1  See  brief  of  J.  B.  Moore  in  Constancia  Sugar  Rfg.  Co.  v.  U.  S.,  No.  196,  before 
Spanish  Treaty  Claims  Commission.  See  also  Pinheiro-Ferreira  in  Pradier-Foder^, 
op.  cit.  I,  §  405. 

2  Baldwin  v.  Franks,  120  U.  S.  678,  682,  707. 

'  S.  Rep.  392,  56th  Cong.  1st  sess.  Ex-senator  Turner  in  Proceedings  of  the  Amer. 
Soc.  of  Int.  Law,  v.  2  (1908),  21  et  seq.  and  Robert  Lansing,  ibid.  44-60.  The  re- 
sponsibility of  the  federal  government  for  violations  of  the  rights  of  aliens,  by  Nelson 
Gammans,  8  .\.  J.  L  L.  (1914),  73-80;  Ex-president  Taft  in  the  Independent,  Feb.  2, 
1914,  pp.  156-158;  Feb.  9,  1914,  pp.  204-208.  Simeon  E.  Baldwin  suggests  that 
Congress  should  authorize  the  bringing  of  an  action  by  the  U.  S.  in  a  state  court 
instead  of  in  a  federal  court.    13  Mich.  L.  Rev.  (1914)  17-20. 

*  S.  Rep.  392,  56th  Cong.  1st  sess.  See  also  Baldwin  v.  Franks,  120  U.  S.  678; 
S.  Doc.  95,  55th  Cong.  2nd  sess.,  p.  2.    See  infra,  p.  225. 


108  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

by  the  urgent  and  solicitous  appeal  of  a  Secretary  of  State  to  a  state 
legislature  to  avoid  any  legislation  unfriendly  to  a  foreign  nation  and 
the  numerous  examples  of  discriminatory  legislation  by  the  states 
against  certain  foreign  interests,  e.  g.,  insurance  companies,  Japanese 
farmers  (in  California),  etc.,  reveals  not  only  the  practical  helplessness 
of  the  federal  government  in  dealing  with  many  phases  of  our  foreign 
relations  but  discloses  an  actual  encroachment  by  the  states  upon  the 
constitutionally  unrestricted  power  of  the  national  government  and 
the  express  prohibition  to  the  states  of  deaUng  with  foreign  relations.^ 

Aliens  in  the  United  States  who  allege  a  violation  of  treaty  rights 
are  placed  in  a  curious  position  by  the  constitutional  rule  that  the 
determination  of  the  rights  of  aliens  claimed  under  treaty  is  within 
the  jurisdiction  of  the  judiciary.  Inasmuch  as  a  treaty  is  the  supreme 
law  of  the  land,  an  ahen  invoking  a  right  under  a  treaty  must  plead 
it  in  the  usual  course  of  judicial  proceedings,^  and  until  justice  has 
been  denied  him  in  those  proceedings,  the  diplomatic  interposition 
of  his  government  is  regarded  as  premature.  Hence  aliens,  complain- 
ing to  the  Department  of  State  through  their  governments  of  the  vio- 
lation of  treaty  rights,  are  referred  to  the  courts,  or  if  the  case  is 
already  in  the  courts,  the  Executive  decUnes  to  interfere  on  the  ground 
of  constitutional  incompetence,  and  on  the  ground  that  a  treaty 
merely  confers  substantive  rights  to  be  enforced  in  the  appropriate 
courts.  An  act  of  state  officials  which  is  evidently  a  violation  of 
treaty  rights  must  often,  therefore,  await  judicial  determination  before 
the  Executive  may  properly  interfere.  If  the  decision  of  the  court  is 
against  the  alien,  the  Executive  usually  feels  justified  in  rejecting  any 
subsequent  diplomatic  claim  which  may  be  advanced  in  his  behalf. 
Foreign  governments,  however,  may  with  justice  answer  that  no  gov- 
ernment can  rightfully  claim  to  be  the  final  judge  of  its  compliance 
with  international  obligations,  or  shield  itself  behind  its  municipal 
law  or  decisions  to  escape  international  liability.  On  the  other  hand, 
if  the  decision  supports  the  alien's  right  under  treaty,  e.  g.,  if  the  alien 
has  been  wrongfully  arrested  or  detained  in  violation  of  treaty  by 

^  Willoughby,  W.  W.,  Principles  of  the  constitutional  law  of  the  U.  S.,  New  York; 
1912  (abridged  ed.),  154  el  seq. 
»  Bradford,  Atty.  Gen.,  in  1  Op.  Atty.  Gen.,  July  26,  1794,  2nd  ser.,  24. 


ALIENS    IN   WAR  109 

police  authorities  and  is  subsequently  released  by  decision  of  a  court, 
the  Executive  has  taken  the  position  that  the  restoration  of  the  alien 
to  his  rights  by  regular  judicial  proceedings  releases  the  government 
from  legal  liability.  Equitable  considerations,  however,  have  been 
held  in  flagrant  cases  to  warrant  a  recommendation  to  Congress  for 
the  payment  of  an  indemnity  as  an  act  of  grace.' 

POSITION   IN   WAR 

§  46.  Aliens  in  War. 

But  brief  mention  can  be  made  of  some  of  the  more  important 
phases  and  general  principles  of  the  aUen's  position  in  time  of  war. 
During  the  nineteenth  century  the  theory  gained  ground  steadily 
that  war  is  primarily  a  relation  between  states,  and  should  so  far 
as  possible  leave  unaffected  the  rights  of  person  and  property  of  non- 
combatants.  The  theory  has  been  confirmed  in  practice  by  treaties 
between  states  and  by  international  conventions,  such  as  those  at  The 
Hague.  While  in  strict  law,  war  makes  enemies  of  the  subjects  of 
the  respective  belligerents  and  authorizes  their  expulsion  from  the 
belligerent  territorj^,  a  network  of  treaties  has  estabhshed  the  practical 
rule  that  aliens,  nationals  of  an  enemy  state,  may  continue  to  reside, 
provided  they  maintain  a  neutral  position,  similar  to  that  of  the 
nationals  of  neutral  states.  In  the  case  of  merchants,  nationals  of 
the  enemy  state,  this  permission  to  reside  and  trade  is  usually  limited 
to  six  months  or  one  year,  while  in  the  case  of  others  who  might  be 
regarded  as  alien  enemies  and  who  are  engaged  in  peaceful  occupa- 
tions, provision  is  usually  made  for  the  security  of  their  persons  and 
property  and  their  unmolested  residence.  We  may  quote  the  custom- 
ary provision  of  the  treaties  of  the  United  States: 

"If  by  any  fatality,  which  cannot  be  expected,  and  which  may  God 
avert,  the  two  contracting  parties  should  be  engaged  in  a  war  with  each 
other,  they  have  agreed  and  do  agree,  now  for  then,  that  there  shall  be 
allowed  the  term  of  six  months  to  the  merchants  residing  on  the  coasts 
and  in  the  ports  of  each  other,  and  the  term  of  one  3'ear  to  those  who 
dwell  in  the  interior,  to  arrange  their  business,  and  transport  their  ef- 
fects wherever  they  please,  with  the  safe  conduct  necessary  to  protect 

^  Claim  of  3  members  of  crew  of  Norwegian  ship  Ingrid,  Oct.  8,  1914,  H.  Doc, 
1172,  62nd  Cong.  2nd  sess. 


110  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

them  and  their  property,  until  they  arrive  at  the  ports  designated  for 
their  embarkation.  And  all  women  and  children,  scholars  of  every 
faculty,  cultivators  of  the  earth,  artisans,  mechanics,  manufacturers,  and 
fishermen,  unarmed  and  inhabiting  the  unfortified  towns,  villages,  or 
places,  and,  in  general,  all  others  whose  occupations  are  for  the  common 
subsistence  and  benefit  of  mankind,  shall  be  allowed  to  continue  their 
respective  employments,  and  shall  not  be  molested  in  their  persons,  nor 
shall  their  houses  or  goods  be  burnt  or  otherwise  destroyed,  nor  their 
fields  wasted  by  the  armed  force  of  the  belligerent  in  whose  power,  by 
the  events  of  war,  they  may  happen  to  fall ;  but,  if  it  be  necessary  that 
anything  should  be  taken  from  them  for  the  use  of  such  belligerent,  the 
same  shall  be  paid  for  at  a  reasonable  price.  ^ 

It  is  a  general  rule,  rigorously  enforced,  that  trading  between  ene- 
mies is  prohibited  during  the  war.^  The  principle  enunciated  by 
Bynkershoek:  "Ex  natura  belli  commercia  inter  hostes  cessare  non  est 
dubitandum,"  has  become  firmly  imbedded  in  the  practice  of  nations, 
although  a  state  may,  for  reasons  of  expediency,  permit  an  exception  by 
granting  individuals  a  license  to  trade  with  the  enemy.  Property 
found  violating  the  rule  is  liable  to  confiscation.  The  subject  is  ex- 
tremely complicated  and  its  difficulty  is  increased  by  the  various 
criteria  of  enemy  character  applied  to  the  ownership  of  the  property 
engaged  in  the  forbidden  trade. ^  This  is  equally  true  of  most  private 
property  of  enemies  at  sea,  which  is  still,  notwithstanding  the  vigorous 
objection  of  many  nations,  subject  to  capture  by  belligerents.  The 
British  and  American  rule  of  testing  enemy  character,  for  purposes 
of  trading  and  maritime  capture,  by  the  trade  domicil  of  the  owner, 
differs  fundamentally  from  the  continental  practice  of  determining 

1  Art.  21,  treaty  of  Feb.  26,  1871,  between  the  U.  S.  and  Italy,  Malloy,  Treaties, 
etc.,  1910,  I,  975. 

2  Halleck,  International  law,  London,  1908,  II,  ch.  23,  p.  143  et  seq.;  Bentwich,  N., 
Law  of  private  property  in  war,  London,  1907,  p.  47.  This  rule  applies  in  Anglo- 
American  law  only  to  persons  resident  in  the  respective  belligerent  states.  See  the 
Mashona,  2  n.  s.  Journ.  of  the  Soc.  of  Comp.  Leg.  (1900)326-341.  See  British 
Trading  with  the  Enemy  Act,  1914,  4  and  5  Geo.  5,  ch.  87  and  Proclamation  No.  2, 
Sept.  9,  1914  and  amendment  Oct.  8,  1914.  See  also  Schuster,  E.  J.,  The  effect  of 
war  and  moratorium  on  commercial  transactions,  2nd  ed.,  London,  1914,  pp.  7-12 
and  appendix;  Trotter,  William  F.,  The  law  of  contract  during  war,  London,  1914, 
Part  I,  §  9;  Page,  Arthur,  War  and  alien  enemies,  London,  1914,  34  et  seq.,  and  Scott, 
Leslie,  Trading  with  the  enemy,  2nd  ed.,  London,  1914. 

»  Halleck,  ilrid.  II,  96  et  seq.;  Schuster,  op.  cit.,  7;  Trotter,  op.  cit.,  part  I,  §  10. 


ALIENS   IN   WAR  111 

such  character  by  the  nationality  of  the  owner.  ^  The  rules  of  the 
common  law  as  modified  by  the  British  emergency  legislation  follow- 
ing the  outbreak  of  the  present  European  War  constitute  the  follow- 
ing classes  as  alien  enemies:  every  individual  or  partnership  firm  re- 
siding in  or  carrying  on  business  in  an  enemy  country,  or  corporation 
there  incorporated;  every  subject  of  an  enemy  state  carrying  on  a 
prohibited  trade  in  British  territory,  and  for  the  purpose  of  the  patent, 
designs  and  trade-mark  acts,  any  subject  of  the  enemy  wherever  resi- 
dent, and  any  British  corporation  controlled  by  or  carried  on  for  the 
benefit  of  enemy  subjects.^ 

The  prohibition  of  intercourse  between  enemies  has  important  effects 
upon  the  legal  relations  of  nationals  of  the  enemy  states.'^  It  applies 
particularly  to  contractual  relations  between  alien  enemies.  All 
contracts  entered  into  after  the  outbreak  of  war  are  void  and  in- 
capable of  enforcement  at  any  time.  Those  concluded  before  the  war 
are  not  void,  but  their  enforcement  is  suspended  until  the  conclusion 
of  peace. ^  The  running  of  the  statute  of  limitations  is  also  suspended.^ 
Executory  contracts  which  require  fulfillment  during  the  war  are  void.® 
Existing  commercial  partnerships  between  nationals  of  enemy  states 
are  dissolved  by  the  outbreak  of  war.^    Whether  the  same  rule  applies 

*  Bentwich,  op.  cit.,  appendix,  142-147;  Baty,  Trade  domicil  in  war,  Journ.  of 
Soc.  of  Comp.  leg.,  August,  1908,  pp.  156-166  and  a  new  edition,  London,  1915; 
Westlake,  Trade  domicil  in  war,  ibid.,  April,  1909,  pp.  265-268;  Phillipson,  Coleman, 
Effect  of  war  on  contracts,  London,  1909,  p.  33  (2nd  ed.,  1914). 

"^  Schuster,  op.  cit.,  3-7,  45  et  seq.;  Page,  op.  cit.,  Ch.  I. 

'  Kershaw  i;.  Kelsey,  100  Mass.  561.  See  also  A.  D.  McNair,  Ahen  enemy  litigants, 
31  Law  Quar.  Rev.  (1915),  154-169,  and  Schuster  and  Trotter,  op.  cit. 

*Ex  parte  Boussmaker  (1806),  13  Vesey,  71;  Caperton  v.  Bowyer,  14  Wall.  216; 
Phillipson,  op.  cit.  70,  72.  Contractual  relations  permitted  by  the  rules  of  war,  are 
not,  of  course,  affected.  Latifi,  A.,  Effects  of  war  on  property,  London,  1909, 
p.  50  et  seq.;  LesUe  Scott  in  30  Law  Quar.  Rev.  (1914)  77-90.  As  to  the  real 
effect  of  art.  23  (h)  of  the  Hague  Convention  on  Land  War,  see  Dr.  Karl  Strupp 
in  23  Ztschr.  f.  int.  Recht,  118-159;  Hans  Wehberg  in  15  R.  D.  I.  (n.  s.  1913)  197- 
224;  Schuster,  op.  cit.  14,  16,  41;  Trotter,  op.  cit.,  Part  I,  §§  5,  8,  12. 

^  Hanger  v.  Abbott  (1867),  6  Wall.  532.  The  Enghsh  opinion  seems  to  be  to  the 
contrary,  Phillipson,  op.  cit.,  75. 

*  Gamba  v.  Le  Mesurier,  4  East,  407;  Schuster,  op.  cit.,  16;  Trotter,  op.  cit..  Part  I, 
i  12;  Page,  op.  cit.,  39. 

^  Griswold  v.  Waddington,  16  Johns.  438  (Kent);  Hall,  op,  cit.,  384;  Latifi,  op.  cit., 


ll2  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

to  alien  enemy  stockholders  in  corporations  appears  more  doubtful. 
According  to  one  view,  believed  to  be  the  better  one,  the  stockholders' 
rights  and  obligations  are  suspended  until  the  restoration  of  peace; 
according  to  another,  these  stockholders  drop  out  and  have  a  right 
to  receive  the  value  of  their  respective  shares  as  on  the  day  of  the 
outbreak  of  the  war.^  The  obligation  of  a  state  to  pay  its  public 
debt  is  not  affected  by  the  war,  even  though  its  bonds  are  held  by 
subjects  of  the  enemy.^ 

Neutral  aliens  are  left  free  to  trade  with  other  neutrals  or  with 
nationals  of  the  enemy,  subject  to  such  restrictions  as  the  acknowl- 
edged rights  of  the  belligerents  dictate.  Within  a  certain  degree 
municipal  law  imposes  neutrality  upon  the  citizens  of  neutral  nations, 
and  unneutral  service  may  be  punished  both  in  municipal  courts  and 
by  the  belligerents.  Beyond  that,  the  restrictions  imposed  by  belliger- 
ents upon  neutral  trade  must  be  enforced  by  the  belligerents  them- 
selves, and  the  danger  of  such  punishment,  usually  confiscation,  is 
the  only  penalty  incurred  by  the  neutral  trader.  By  international 
law  these  restrictions  upon  the  freedom  of  neutral  trade  are  confined 
to  the  carriage  of  contraband,  the  violation  of  blockade,  certain  serv- 
ices rendered  to  the  enemy  and  the  constant  liability  to  belligerent 
visit  and  search.^  With  a  view  to  curtailing  the  promiscuous  capture 
of  enemy  property  at  sea,  the  Declaration  of  Paris  of  1856  prescribed 
the  rule,  which  has  since  been  generally  adopted,  that  the  neutral 
flag  covers  enemy  goods  with  the  exception  of  contraband  of  war, 
and  that  neutral  non-contraband  goods  are  not  liable  to  capture  under 
the  enemy  flag. 

The  property  of  the  citizens  of  an  enemy  state  found  within  a 
belligerent's  own  territory  may  in  strict  law  be  confiscated.*    Modern 

52;  Ztschr.  f.  Volkerr.,  1909,  p.  52;  Schuster  {op.  cit.,  20-24),  argues  convincingly 
that  the  rule  is  of  exceedingly  narrow  application,  and  has  been  misinterpreted. 

'  Phillipson,  op.  cit.,  91-95,  96-99;  Westlake,2nd  ed.  II,  53-55;  Foreign  investments 
in  time  of  war,  by  R.  A.  Chadwick,  20  Law  Quar.  Rev.  (1904),  167-185,  especially  p. 
174;  Latifi,  op.  cit.,  54  et  seq.;  Schuster,  op.  cit.,  24-27. 

2  J.  B.  Moore  in  1  Columbia  L.  Rev.  209  et  seq.  and  authorities  there  cited;  Trotter, 
op.  cit.,  Part  I,  §  15. 

'  Bentwich,  op.  cit.,  108. 

*  Brown  v.  U.  S.,  8  Cranch,  110;  Kent's  Comm.  I,  1,  13;  Page,  op.  cit ,  14  et  seq. 


ALIENS    IN    WAR  113 

practice,  however,  has  practically  abrogated  this  rule  and  substituted 
the  more  humane  principle  that  such  property  is  inviolable.  Treaties 
have  confirmed  this  practice.  Most  of  the  treaties  of  the  United 
States  with  foreign  powers  provide  not  only  for  exemption  from 
military  service  or  contributions  in  lieu  of  such  service,  but  also  for 
exemption  from  forced  loans  or  military  exactions  or  contributions. 
Where  the  property  of  enemy  individuals  appears  likely  to  be  of 
service  to  the  enemy  in  his  military  operations,  as  ships  in  certain 
cases,  arms  and  ammunition,  it  may  be  sequestrated  to  prevent  its 
reaching  him  and  be  restored  at  the  end  of  the  war,^  and  it  is  always 
subject  to  eminent  domain  on  payment  of  compensation.  Inasmuch  as 
alien  enemies  may  be  expelled,  less  rigorous  measures,  e.  g.,  con- 
centration, prohibition  of  residence  in  certain  defined  areas,  registra- 
tion, and  temporary  detention,  especially  when  there  is  danger  of  their 
serving. the  enemy,  appear  to  be  justified.  Various  measures  of  super- 
vision over  alien  enemies  have  been  resorted  to  by  the  belligerents  in 
the  present  European  war.^ 

The  person  and  property  of  neutrals  are  in  principle  subject  to  such 
exceptional  measures  of  jurisdiction  and  to  such  exceptional  taxation 
and  seizure  for  the  use  of  the  state  as  the  existence  of  hostilities  may 
render  necessary,  provided  that  no  greater  burden  is  imposed  upon 
aliens  than  upon  nationals.^ 

The  property  of  citizens  of  the  enemy  state  on  hostile  territory,  i.  e., 
in  territory  in  which  one  of  the  belligerents  becomes  and  exercises  the 
rights  of  a  miUtary  occupant,  is,  strictly  speaking,  inviolable.     This 

1  Latifi,  A.,  op.  cit.,  40.  The  French  decree  of  Sept.  27,  1914  forbidding  Germans 
and  Austrians  to  engage  in  "any  commercial  transaction  in  France"  seems  legitimate. 
But  the  forcible  liquidation  of  all  German  and  Austrian  concerns,  and  the  sequestra- 
tion and  retention  of  all  moneys  received  in  the  liquidation,  for  the  benefit  of  French 
creditors  or  as  security  for  a  possible  future  indemnity  to  be  exacted,  seems  an  un- 
warranted extension  of  belligerent  rights.  As  to  the  position  of  foreign  commercial 
enterprises  in  Germany  during  the  war  see  Bundesratsordnung  of  Sept.  4,  1914 
and  Dr.  Waldecker  in  19  Deutsche  Juristen-Ztg.,  Oct.  1,  1914,  1160-1164. 

2  See,  e.  g.,  The  British  Aliens  Restriction  Act,  1914,  and  Orders  in  Council  Aug.  5 
and  12,  1914;  Page,  op.  cit.,  11-12  and  appendices. 

'  This  would  include  the  right  of  angary  by  which  foreign  or  national  vessels  may 
be  seized  in  the  ports  of  the  state  and  compelled  to  transport  soldiers  or  render  other 
military  service.    PhiUimore,  op.  cit.,  Ill,  50;  Hall,  op.  cit.,  12tl. 


114  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

rule  has  been  confirmed  by  the  Hague  Regulations  of  1899.^  It  is, 
however,  subject  to  certain  modifications:  (a)  Certain  kinds  of  prop- 
erty are  considered  lawful  booty,  e.  g.,  arms,  horses,  and  military 
papers  seized  from  combatants  on  the  field  of  battle;  (b)  objects 
useful  in  military  operations,  such  as  conveyances  and  war  material 
of  all  kinds  may  be  taken  and  used,  but  must  be  restored  and  com- 
pensation paid  for  their  use;^  (c)  requisitions  of  food,  money,  goods 
and  services  are  justified  by  the  necessities  of  war,  and  then  only. 
They  must  be  paid  for  or  receipts  given  to  be  redeemed  later;^  (d) 
contributions  or  payments  over  and  above  the  usual  taxes  may  be 
levied  on  all  the  inhabitants.  The  method  of  levying  them  is  provided 
by  the  Hague  Regulations.^  Such  a  wide  discretion,  however,  is 
vested  in  the  military  commander  as  to  the  purposes  for  which  they 
may  be  levied  and  as  to  their  amount,  that  the  restrictions  imposed 
by  the  general  rule  and  its  strictly  limited  exceptions,  are  greatly 
weakened.^  The  property  of  neutral  subjects  in  hostile  territory  is 
liable  to  the  same  burdens  as  that  of  subjects  of  the  enemy. ^  The 
proposals  of  Germany  and  the  United  States  at  The  Hague  to  grant 
neutral  property  greater  privileges  were  defeated  by  the  combined 
opposition  of  several  of  the  other  great  powers. 

The  private  property  of  alien  enemies  at  sea  is  subject  to  capture, 
unless,  where  cargo,  it  is  protected  by  a  neutral  flag;  whereas  the 
property  of  neutrals,  ship  or  cargo,  is  exempt  from  capture,  unless 
contraband.^  The  first  of  these  general  rules  has  resisted  the  vigorous 
agitation  of  several  countries,  led  by  the  United  States,  to  secure 
immunity  for  the  private  property  of  enemies  at  sea,  not  contraband 
of  war,  although  several  states,  by  treaty,  have  agreed  to  abide  by 
this  more  enlightened  practice.    The  general  rule  above  mentioned  is 

'  Latifi,  op.  cil.,  29  d  seq. 
^  Hague  Regulations,  art.  53. 

'  Hague  Regulations,  art.  52;  Spaight,  J.  M.,  War  rights  on  land,  London,  1911, 
p.  381;  Pont,  Ch.,  Les  requisitions  militaires,  Nancy,  1905. 

*  Hague  Regulations,  arts.  49,  51. 

'  Cases  are  enumerated  in  Latifi,  op.  cil.,  32  et  seq. 

*  Westlake,  op.  cil.  II,  284  cl  ncq.;  Frankenbach,  C,  Die  Rechtsstellung  von  neu- 
tralen  Staatsangehorigen  in  kriegsfiihrenden  Staaten,  Marburg,  1910. 

'  Bentwich,  op.  cit.,  108  et  seq.  132;  Latifi,  op.  cil.,  74  cl  seq. 


ALIENS   IN   WAR  115 

exceedingly  difficult  of  application,  owing  to  the  difficulty  in  determin- 
ing the  enemy  or  neutral  character  of  vessel  or  cargo.  The  flag  is 
generally  a  prima  facie  test  as  to  neutral  property,  but  not  as  to 
enemy  property.  On  the  continent  the  enemy  or  neutral  character 
of  cargo  is  determined  by  the  nationality  of  its  owner,  whereas  in 
Great  Britain  and  the  United  States  this  is  determined  by  his  com- 
mercial domicil.  The  question  is  further  complicated  by  uncertainty 
as  to  who  is  the  owner,  consignor  or  consignee,  by  doubt  in  certain 
cases  where  ownership  is  transferred  while  goods  are  in  transitu — though 
doubts  are  generally  construed  against  the  transferee  ^ — by  the  origin 
of  certain  kinds  of  produce,  whether  from  neutral  or  from  enemy  soil 
(being  enemy  property  in  the  latter  case,  though  owned  by  a  neutral), 
and  innumerable  other  problems  to  which  the  question  has  given 
rise.^  Certain  kinds  of  property,  however,  are  exempt  from  maritime 
capture.  By  Convention  VI  of  the  Hague  Conference  of  1907  mer- 
chant vessels  of  the  enemy  in  the  portss^f  a  belligerent  are  allowed  a 
reasonable  time  to  discharge  and  leave.^  Exemption  from  confisca- 
tion is  likewise  extended  to  vessels  which  left  their  last  port  before 
the  commencement  of  the  war  and  are  found  on  the  high  seas  still 
ignorant  of  its  existence.  Where  detention  is  necessary  they  must 
be  restored  after  the  war,  or  where  requisitioned,  compensation  must 
be  made.  This  rule  extends  also  to  enemy  cargo  under  the  above 
circumstances.  The  rule  that  enemy  vessels  w4th  their  enemy  cargo 
may  be  captured,  is  also  subject  to  exception  in  the  following  cases: 

(a)  vessels  engaged  in  religious,  scientific  and  philanthropic  missions; 

(b)  cartel  ships  carrying  exchanged  prisoners;  (c)  hospital  ships; 
(d)  personal  effects  of  passengers  and  crew;  (e)  fishing  vessels;  (f) 
postal  correspondence  and,  as  between  some  nations,  mail  steamers; 
and  (g)  submarine  cables.^ 

^  The  Vrouw  Margaretha,  1  C.  Rob.  336. 

2  Halleck,  op.  cit.  II,  ch.  22,  p.  96  et  seq.;  Wehberg,  Hans,  Capture  in  war  on  land 
and  sea,  London,  1911. 

'  Page,  op.  cit.,  16-19;  J.  B.  Scott  in  2  A.  J.  I.  L.  (1908),  261;  Oppenheim  in  8 
Ztschr.  f.  Volkerrecht  (1914),  154  et  seq.;  Baty  in  26  Jurid.  Rev.  (1914),  256.  Supra, 
p.  62  note  2. 

*  Latifi,  op.  cit.,  103  et  eeq. 


CHAPTER  in 

MUNICIPAL  RESPONSIBILITY  OF  THE  STATE 

§  47.  Outline  of  the  Subject. 

An  international  claim,  with  its  demand  for  diplomatic  protection, 
is  founded  upon  some  violation  of  the  right  of  person  or  property 
of  an  alien.  In  first  instance,  this  right  and  the  remedy  for  its  in- 
fringement are  measured  largely  by  the  municipal  law  of  the  state  of 
residence.  For  this  reason  it  is  of  importance  as  a  foundation  for  a 
closer  study  of  the  international  responsibility  of  the  state  to  examine 
along  broad  lines  the  extent  to  which  the  state  grants  municipal 
remedies  to  an  individual  injured  by  an  official  or  governmental  act. 
This  is  necessary  not  only  because  municipal  responsibihty  is  often 
the  measure  of  international  responsibility  and  because  injured  aliens 
are  so  frequently  remitted  to  their  local  remedies  when  calling  upon 
the  protection  of  their  own  government,  but  because,  as  will  be  seen, 
the  responsibility  fixed  upon  governments  toward  aliens  by  inter- 
national tribunals  and  in  the  diplomatic  adjustment  of  cases  of  pro- 
tection deviates  in  many  respects  from  the  principles  laid  down  by 
national  judicial  and  administrative  tribunals  for  the  determination 
of  municipal  liability. 

A  detailed  study  of  the  remedies  of  the  individual  in  municipal 
law  against  acts  of  the  administration,  requires  more  space  than  is 
at  our  command  for  the  present  purpose,  namely,  to  lay  a  foundation 
for  the  international  responsibility  of  the  state.  The  discussion, 
therefore,  will  be  confined  to  a  comparative  treatment  of  various  phases 
of  the  municipal  responsibility  of  the  state — on  the  one  hand,  remedies 
available  to  the  individual  through  judicial  control  over  the  adminis- 
tration, particularly  recourse  for  the  annulment  or  prevention  of  un- 
lawful acts  of  officials;  and  on  the  other  hand,  remedies  in  the  form 
of  actions  for  damages,  against  the  state  or  against  officers,  for  the 

116 


GOVERNMENTAL   AND    CORPORATE   FUNCTIONS  117 

injuries  sustained  by  individuals  through  governmental  acts.  In  the 
course  of  the  discussion,  the  legal  system  prevaiUng  in  France,  Ger- 
many, Great  Britain  and  the  United  States  will  be  primarily  drawn 
upon  for  purposes  of  comparison. 

§  48.  Distinction  between  Governmental  and  Corporate  Functions. 

Attention  may  first  be  directed  to  certain  broad  distinctions  made  in 
the  administrative  law  of  the  civil  law  countries  and  manifested  as 
well  (although  unconscious^,  except  in  the  case  of  municipal  cor- 
porations) in  the  Anglo-American  system.  This  is  a  division  of  the 
activity  of  the  state  into  two  separate  aspects,  the  one  governmental, 
or  what  Europeans  call  the  state  as  a  public  power  (puissance  pub- 
lique,  offentliche  Geivalt),  the  other  proprietary,  or  the  state  as  a 
civil  person.  In  its  capacity  as  a  governmental  power  or  as  a  sover- 
eign, jure  imperii,  the  state  is  in  principle  immune  from  liability  for 
its  acts  causing  injury  to  private  individuals.  In  a  broad  way  this 
activity  involves  those  functions  which  look  to  the  external  and  in- 
ternal security  of  the  state — through  armj^  navy,  police,  etc.  By 
statute,  as  will  be  seen,  this  sphere  of  immunity  is  being  gradually 
narrowed.  On  the  other  hand,  the  state,  as  a  corporation,  enters  into 
legal  relations  with  individuals  and  even  engages  in  various  enter- 
prises, jure  gestionis.  In  Europe  such  activity  is  even  greater  than 
in  the  United  States.  It  involves  such  services  as  the  operation  of  a 
railroad  system,  the  carrying  on  of  industrial  monopolies,  e.  g.,  the  man- 
ufacture of  matches  and  tobacco  products,  and  the  ownership  of  land, 
buildings  and  other  property.  The  state  in  these  activities  is  considered 
as  a  private  person,  subject  to  the  same  liabilities  and  generally  to  the 
same  principles  of  law  as  are  apphed  to  the  individual.  In  Germany,  the 
state  viewed  from  this  proprietary  aspect  is  called  th(^  fi-skvs;  in  France 
these  activities  are  known  as  actes  de  gestion.  In  the  United  States  and 
Great  Britain  the  admission  of  contractual  UabiUty  is  a  manifestation  of 
the  distinction.  While  the  federal  government  and  the  commonwealths 
of  the  United  States  have  in  no  other  way  given  expression  to  the 
distinction  of  governmental  and  private  or  corporate  activities  of  the 
state,  the  distinction  is  clearly  recognized  in  the  law  of  our  cities 
and  other  municipal  corporations. 


118  THE   DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

§  49.  Judicial  Control  over  Acts  of  Administration. 

Systems  of  judicial  control  over  acts  of  the  administration  differ 
very  much  from  country  to  country.  Laferrilre  divides  the  impor- 
tant countries  into  three  separate  groups:  ^  First,  the  group  adopting 
the  French  system,  which  is  characterized  by  the  principle  of  the 
separation  of  powers  with  separate  administrative  tribunals  having 
jurisdiction  of  litigation  between  the  administration  and  individuals, 
and  a  tribunal  of  conflicts  to  determine  what  are  acts  of  administra- 
tion. This  system  in  general  has  been  adopted  by  Spain,  Portugal, 
Italy,  the  German  Empire  and  many  of  the  important  German  states, 
Austria-Hungary,  and  some  of  the  cantons  of  Switzerland.  The 
second  group  is  characterized  by  the  absence  of  administrative  tri- 
bunals, the  administrative  function  nevertheless  remaining  distinct 
and  separate  from  the  judicial.  The  ordinary  judicial  tribunals  pass 
upon  all  claims  having  a  contentious  character,  but  they  cannot 
interfere  in  the  powers  of  the  administration  or  annul  its  acts.  The 
independence  of  the  administrative  function  from  the  courts  may  be 
asserted  by  raising  the  conflict,  jurisdiction  of  which  matter  resides 
in  one  of  the  higher  judicial  courts.  This  system  is  followed  by  Bel- 
gium, Sweden,  Norway,  Denmark,  Greece,  the  majority  of  the  Swiss 
cantons  and  some  of  the  smaller  German  states.  With  various  modi- 
fications it  has  been  adopted  by  several  of  the  states  of  Latin-America. 
The  third  group  includes  Great  Britain  and  the  United  States.  Here- 
the  judicial  tribunals  have  full  jurisdiction  between  the  administra- 
tion and  individuals,  and  by  means  of  the  extraordinary  legal  remedies, 
particularly  injunction,  mandamus  and  certiorari,  have  the  power  to 
delimit  the  sphere  of  administrative  competence  and  exercise  a  power- 
ful control  over  administrative  acts.  The  system  is  characterized  by 
a  decentralized  administration,  its  elective  nature,  and  the  absence 
of  an  administrative  hierarchy,  so  that  the  powers  exercised  in  a  large 
part  of  Europe  by  superior  administrative  authorities  are  in  the  Anglo- 
American  system  exercised  by  the  judicial  authorities.^    The  law  of 

'  Laforriero,  E..  Trait6  de  la  juridiction  administrative  et  dos  recours  contentieux, 
2nd  ed.,  Paris,  1896,  I,  p.  26  et  aeq.  Cf.  Goodnow,  F.  J.,  Comparative  administrative 
law,  New  York,  1893,  II,  144  et  seq.,  for  Great  Britain,  the  United  States,  France  and 
Germany. 

^  For  general  works  on  the  administrative  systems  of  the  more  important  coun- 


JUDICIAL   CONTROL   OVER   ACTS   OF   ADMINISTRATION  119 

France,  Germany  and  of  other  countries  having  an  administrative 
jurisdiction  protects  the  administration  from  interference  by  the 
courts  to  an  extent  unknown  to  the  Anglo-American  law.^ 

tries,  the  following  may  be  consulted.  Only  some  of  them  have  been  actually  used 
in  the  course  of  the  present  study : 

France:  Aucoc,  L.,  Conferences  sur  I'administration  et  le  droit  administratif,  3rd 
ed.,  Paris,  1885-86,  2  v.;  Bcquet,  Leon,  Repertoire  du  droit  administratif,  Paris, 
1882-1907,  24  vol.,  especially  v.  23,  title  "Responsabilite"  by  Teissier;  Bcrthelemy, 
J.  B.  H.,  Traite  elementaire  de  droit  administratif,  5.  ed.,  Paris,  1908;  Block,  Maurice, 
Dictionnaire  de  I'administration  frangaise,  ...  5.  ed.,  Paris,  1905;  2  vol.  Same, 
Supplement,  Paris,  1907;  Boeuf,  Henri,  Resume  de  droit  administratif,  20.  ed., 
Paris,  1907;  Bremond,  Jules,  Traite  theorique  et  pratique  de  la  competence  adminis- 
trative, Paris,  1894;  Darcste  de  La  Chavanne,  Rodolphe,  La  justice  administrative 
en  France,  .  .  .  2.  ed.,  Paris,  1898;  Ducrocq,  Th.,  Cours  de  droit  administratif,  .  .  . 
7.  ed.,  Paris,  1897-1905,  7  vol.;  Hauriou,  Maurice,  Precis  de  droit  administratif  et 
de  droit  public,  8th  6d.,  Paris,  1914;  Jacquelin,  Rene  L.  D.,  Les  principes  dominants 
du  contentieux  administratif,  ,  .  .  Paris,  1899;  Jeze,  Gaston,  Elements  du  droit 
public  et  administratif,  .  .  .  Paris,  1910;  Laferriere,  E.,  Traite  de  la  juridiction 
administrative  et  des  recours  contentieux,  ...  2.  ed.,  Paris,  1896,  2  vol.;  Mailhol, 
Dayre  de,  Dictionnaire  encyclopedique  d'administration  generale,  Paris,  1906-8, 
5  vol.;  Marie,  Jean,  Elements  de  droit  administratif,  .  ,  .  Paris,  1890;  Mayer, 
Otto,  Theorie  des  franzosischen  Verwaltungsrechts,  Strassburg,  1886;  Moreau, 
Felix  P.  L.,  Manuel  de  droit  administratif,  .  .  .  Paris,  1909. 

Germany  and  Prussia:  Altmann,  Paul,  Die  Verfassung  und  Verwaltung  im  Deut- 
schen  Reiche  und  Preussen,  ,  .  .  Berlin,  1907-08,  2  vol.;  Bornhak,  Konrad, 
Grundriss  des  Verwaltungsrechts  in  Preussen  und  dem  Deutschen  Reiche,  4th 
ed.,  Leipzig,  1912;  Fleiner,  F.,  Institutionen  des  deutschen  Verwaltungsrechts, 
3rd  ed.,  Tubingen,  1913;  Gneist,  R.,  Der  Rechtsstaat  u  Verwaltungsgerichte  in 
Deutschland,  2.  aufl.,  Berlin,  1879;  Jahrbuch  des  Verwaltungsrechts,  Berlin,  1907- 
1914,  vol.  1-8  (1905-1914),  and  continuation;  Kunze,  Fritz,  Das  Verwaltungsstreit- 
verfahren,  .  .  .  Berlin,  1908;  Loening,  Edgar,  Lehrbuch  des  deutschen  Verwal- 
tungsrechts, Leipzig,  1884;  Mayer,  Otto,  Deutsches  Verwaltungsrecht,  Leipzig, 
1895-6  (also  in  French,  Paris,  1903-06),  2  vol.,  2nd  ed.,  1914;  Meyer,  Georg,  Lehr- 
buch des  deutschen  Verwaltungsrechtes,  ...  3.  aufl.,  Leipzig,  1910;  Mohl,  Robert 
v.,  Die  Pohzei-wissenschaft  nach  den  Grundsatzen  des  Rechtsstaates,  ...  3.  aufl., 
Tubingen,  1866,  3  vol.;  Sarwey,  O.,  AUgemeines  Verwaltungsrecht,  Freiburg,  1884; 
Sarwey,  O.,  Das  offentUche  Recht  u.  die  Verwaltungsrechtspflege,  Tubingen,  1880; 
Stengel,  Karl  M.  J.  L.,  Lehrbuch  des  deutschen  Verwaltungsrechts,  Stuttgart, 
1886;  Stengel,  Karl  M.  J.  L.,  Worterbuch  des  deutschen  Verwaltungsrechts,  .  .  . 
2.  auti.,  by  Fleischmann,  Tubingen,  1911-1914.  3  v.;  Tezner,  Friedrich,  Die  deutschen 
Theorien  der  Verwaltungsrechtspflege,  .  .  .  Berlin,  1901;  Zorn,  Philipp,  Das  Staats- 
recht  des  Deutschen  Reiches,  2.  aufl.,  BerUn,  1895-97,  2  vols.  (Vol.  1:  Das  Verfas- 
sungsrecht;  Vol.  2:  Das  Verwaltungsrecht.  .  .  .) 

'  Cf.  article  by  Ernst  Freund,  Private  claims  againat  the  state,  8  Pol.  So.  Quar. 
(1893),  625,  651. 


120  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

§  60.  When  State  is  Responsible,  and  Incidence  of  Liability. 

It  is  now  recognized  in  all  civilized  countries  that  the  interference 
of  the  state  in  private  rights  for  public  purposes  requires  in  some 
measure  a  compensation  for  the  special  sacrifice  borne  by  the  in- 

Bornhak,  Konrad,  Geschichte  des  preussischen  Verwaltungsrechts,  Berlin, 
1884-86,  3  vol.;  Handbuch  fiir  preussische  Verwaltungsbeamte  .  .  .  begriindet 
von  Illing  .  .  .  fortgefiihrt  von  George  Kautz,  ...  10  aufl.,  Berlin,  1913,  3  vol. 
and  index;  Handworterbuch  der  preussischen  Verwaltung,  Hrsg.  v.  Bitter,  2  aufl., 
Leipzig,  1911,  2  vols.;  Preussen,  Oberverwaltungsgericht,  Die  Rechtsgrundsatze 
des  Koniglich  Preussischen  Oberverwaltungsgerichts,  Begriindet  von  K.  Parey, 
4  aufl.,  Hrsg.  von  !>.  Kunze  .  .  .  und  Dr.  G.  Kautz,  .  .  .  Berlin,  J.  Guttentag, 
1905-06,  3  V.  and  supplement. 

Austria-Hungary:  Excel,  Theodor,  Das  Verfahren  vor  dera  K.  K.  Verwaltungs- 
gerichtshofe  .  .  .  Wien,  1885-92,  2  vols.;  Griinwald,  Ludwig,  Der  osterreichische 
Verwaltungs-gerichtshof,  Mit  Vergleichung  des  bestehenden  Rechtes  in  England, 
Frankreich,  Italien,  Baden  und  Pruessen,  Wien,  1875;  Gumplowicz,  Ludwig,  Das 
oesterreichische  Staatsrecht  (Verfassungs-  und  Verwaltungsrecht)  ...  2  aufl., 
Wien,  1902;  Kissling,  Karl  von,  Beitrage  zur  Theorie  des  Verwaltungsrechtes. 
Wien,  1876;  Kissling,  Karl  von,  Reichsgericht  und  Verwaltungsgerichtshof  .  .  . 
Wien,  1875;  Mayrhofer,  Ernst,  .  .  .  Handbuch  fiir  den  politischen  Verwaltungs- 
dienst,  ...  5.  aufl.  Wien,  1895-1901,  7  vol.  Same,  Index,  Wien,  1903.  Same, 
Supp.,  1909-;  Mischler,  Ernst,  Osterreichisches  Staatsworterbuch,  ...  2  aufl., 
Wien,  1905-9,  4  vols.;  Normaliensammlung  fiir  den  politischen  Verwaltungs- 
dienst  .  .  .  Wien,  1901-1907,  4  vol.  Same,  3  Supplements.  Wien,  1911-12; 
Tezner,  Friedrich,  Handbuch  des  ostcrreichischen  Administrativverfahrens,  .  .  . 
Wien,  1896;  LTlbrich,  Josef,  Handbuch  dor  ostcrreichischen  politischen  Verwal- 
tung, .  .  .  Wien,  1888-90,  2  vol.  Same,  Supplement.  Wien,  1892;  Ulbrich,  Josef, 
Lehrbuch  des  ostcrreichischen  Verwaltungsrechtes,  .  .  .  Wien,  1904;  Zolger,  Ivan, 
Oesterreichisches  Verordnungsrecht,  verwaltungsrechtlich  dargestellt,  .  .  .  Inns- 
bruck,   1898;    Markus,   Desider,    Ungarisches   Verwaltungsrecht,   Tiibingen,    1912. 

Italy:  Boccardo,  Gerolamo,  Manualc  di  diritto  amministrativo,  ...  2.  ed., 
Torino-Napoli,  1886;  Brunialti,  A.,  II  diritto  amministrativo  italiano  e  comparato 
nella  scienza  e  nella  istituzioni,  Torino,  19 12-,  Vol.  1  and  continuation;  Brunialti, 
A.,  I  diritti  dei  cittadini  e  la  giustizia  amministrativa  in  Italia,  Torino,  1902;  Enciclo- 
j)edia  di  amministrazione,  industria  e  commercio  .  .  .  Opera  diretta  dal  Comra. 
Giu.seppe  Cerboni  .  .  .  Milano,  F.  Vallardi,  1891-1904,  5  vols.;  Forti,  Ugo,  .  .  . 
Studi  o  questioni  di  diritto  amministrativo,  .  .  .  Torino,  1906;  Orlando,  V.  E., 
Primo  trattato  complete  di  diritto  amministrativo  italiano,  .  .  .  Milano,  1900-05, 
vols.  1,  3,  4',  4^^,  9  (in  progress);  Presutti,  Enrico,  .  .  .  Instituzioni  di  diritto  am- 
ministrativo italiano,  .  .  .  Napoh,  1904-05,  2  vol.;  Ranoletti,  Diritto  amminis- 
trativo, Naples,  1912-,  Vol.  1  and  cont.;  Salandra,  A.,  Lezioni  di  diritto  amministra- 
tivo per  cura  di  C.  Manes,  Rome,  1912;  Vitta,  Cino,  .  .  .  Giustizia  amministrativa. 
Principi  fondamentali,   .   .   .   Milano,  1903. 

Spain:  Abella,  Fermfn,  Tratado  de  derecho  administrative  espanol,  .  .  .  Madrid, 
1886-88,  3  vol.;  Aleu  y  Carrera,  Manuel,  Diccionario  de  la  administracidn  municipal 


WHEN    STATE   IS    RESPONSIBLE,    AND    INCIDENCE    OF   LIABILITY       121 

dividual  in  the  public  interest.  The  dividing  Hne  between  sacrifices 
for  which  the  individual  shall  be  compensated  and  those  which  he 
must  bear  alone,  the  extent  of  his  remedy  for  official  misfeasance  or 
nonfeasance,   the  proper  party  defendant,   whether  state  or  officer, 

de  Espafia,  ...  2.  ed.,  Madrid,  1908-11,  8  vol.;  Caballero  y  Monies,  Jose  Maria, 
Lo  contencioso-adininietrativo,  .  .  .  Zaragoza,  1902-04,  3  vol.;  Colmerio,  Manuel, 
Elementos  del  derecho  politico  y  administrativo  de  Espafia,  ...  7.  ed.,  Madrid, 
1887;  Gonzalez,  Alfonso,  La  materia  contencioso-administrativa,  comentario  a  la 
legislaci6n  vigente,  Madrid,  1903;  Martinez  Alcubilla,  Marcelo,  Diccionario  de  la 
administracidn  espaflola,  ...  5.  ed.,  .  .  .  Madrid,  ,  .  .  1892-95,  9  vols,  and 
Appendices;  Posada,  Adolf o,  Tratado  de  derecho  administrativo  segun  las  teorias, 
filos6ficas  y  la  legislacidn  positiva,  .  .  .  Madrid,  1897-98,  2  vols.;  Royo  Villanova, 
Antonio,  Elementos  de  derecho  administrativo,  .  .  .  Valladolid,  1907,  2  vol.  in  1; 
Santamaria  de  Paredes,  Vicente,  Curso  de  derecho  administrativo,  ...  7.  ed., 
Madrid,  1911;  Ubierna  y  Eusa,  J.  A.,  Conflictos  jurisdiccionales  entre  los  poderes 
ejecutivo  y  judicial,  Madrid,  1911. 

Belgium:  Bladel,  Georges,  Elements  de  droit  maritime  administratif  beige,  Brux- 
elles,  1912;  Bourquin,  Maurice,  La  protection  des  droits  individuels  contre  les  abus 
de  pouvoir  de  I'autorite  administrative  en  Belgique,  Bruxelles,  1912;  Errera,  Paul, 
Traite  de  droit  public  beige,  Paris,  1909;  Giron,  A.,  Dictionnaire  de  droit  adminis- 
tratif et  de  droit  public,  Bruxelles,  1895-96,  3  vol.;  Giron,  A.,  Le  droit  administratif 
de  la  Belgique,  2.  ed.,  .  .  .  Bruxelles,  1885,  3  vol.;  Masson,  F.,  and  Wiliquet,  C, 
Manuel  de  droit  constitutionnel,  notions  elementaires  des  institutions  constitution- 
nelles  et  administratives  de  la  Belgique,  ...  7.  ed.,  Bruxelles,  1904;  Orban,  O., 
Manuel  de  droit  administratif  beige,  .  .  .  Liege,  Namur,  1897. 

Portugal:  Motta,  Jayme  Arthur  da,  Codigo  administrativo  de  1896  annotado,  2. 
edi^ao,  Coimbra,  1909;  Pedrosa,  Guimaraes,  Curso  de  ciencia  da  administra^ao  e 
direito  administrativo,  2.  edigao,  Coimbra,  Imp.  Univ.,  1909,  2  vol. 
Spanish  America: 

Argentine:  Estrada,  Jos^  M.,  Curso  de  derecho  constitucional,  federal  y  admin- 
istrativo, Buenos  Aires,  1895;  Lopez,  Lucio  Vicente,  Derecho  administrativo  ar- 
gentino,  .  .  .  Buenos  Aires,  1902. 

Bolivia:  Loayza,  Hiram,  Juicios  de  hacienda  comprende  juicio  coactivo,  .  .  . 
La  Paz,  1906;  Moscoso,  Octavio,  Diccionario  juridico  y  administrativo  de  Bolivia, 
Sucre,  1908,  2  vol.;  Santos  Quinteros,  Jose,  Derecho  administrativo,  Sucre,  1893. 

Brazil:  Viveiros  de  Castro,  August  O.,  Tratado  de  sciencia  da  administra^ao  e 
direito  administrativo,  2.  ed.,  Rio  de  Janeiro,  1912. 

Chile:  Amunategui  Rivera,  J.  D.,  Administraci6n  politica  i  derecho  administrativo, 
Santiago  de  Chile,  1907;  Amunategui  Rivera,  Jose  Domingo,  Tratado  general  de 
derecho  administrativo  aphcado  a  la  legislaci6n  de  Chile,  Santiago,  1907;  Amuna- 
tegui Rivera,  J.  D.,  Resumen  de  derecho  administrativo  aplicado  a  la  legislacion  de 
Chile,  Montevideo,  1900;  Larrain  Zanartu,  J.  J.,  El  ciudadano  y  el  gobierno,  Santiago, 
1886;  Perez  deArce,  Hermojenes.  Tratado  de  administraci6n  piibhca,  .  .  .Santiago, 
1896. 

Colombia:  Olarte  Camacho,  Vicente,  Recopilaci6n  de  leyes  y  disposiciones  ad- 


122  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

are  matters  which  differ  from  country  to  country  and  which  require 
detailed  examination. 

We  have  already  adverted  to  the  two  aspects  of  the  state  as  a 
property  owner  and  fiscal  entrepreneur  and  as  a  public  power.  The 
difficulty  in  applying  the  rule  of  responsibility,  which  is  generally 
admitted  in  the  former  case  and  on  principle  denied  in  the  latter, 
consists  in  determining  when  the  state  does  act  as  a  subject  of  prop- 
erty rights  and  when  it  acts  in  its  sovereign  sphere  as  a  public  power. 
For  example,  one  transaction  may  involve  its  functions  in  both  ca- 
pacities; thus,  it  has  been  held  in  France  that  a  request  for  dip- 
lomatic interposition  made  upon  the  Foreign  Office,  with  papers  in 
support,  cannot  in  case  of  refusal  involve  the  responsibiUty  of  the 
state,  but  that  the  loss  of  the  papers  filed  does  warrant  an  action 
for  damages.  The  only  way  of  settling  the  difficulty  is  by  reference 
to  the  administrative  jurisprudence  of  the  various  countries,  from 
which  we  may  determine  the  particular  activities  of  the  state  which 
have  been  held  to  be  within  its  functions  as  a  fiskus,  or  to  constitute 
acts  of  gestion,  and  therefore  to  involve  the  liability  of  the  state. 

When  the  state  acts  in  its  capacity  as  a  public  power,  its  respon- 
sibility has  often  been  admitted  by  special  legislation.  For  example, 
all  states  recognize  the  necessity  of  compensating  the  owner  of  private 
property  taken  for  public  use.    How  much  further  governments  go  in 

ministrativas,  Bogota,  Colombia,  1901-2,  2  vol.;  Gonzalez,  Florentino,  Derecho 
administrativo  (Bogota). 

Costa  Rica:  Zambrana,  Antonio,  La  administracidn.    Un  estudio,  San  Jose,  1897. 

Cuba:  Morilla,  Jose  Maria,  Breve  tratado  de  derecho  administrativo  espagfloi 
general  del  reino,  y  especial  de  la  isla  de  Cuba,  2.  ed.,  Habana,  1896,  2  vol.  in  1. 

Guatemala:  Gonzalez  Saravia,  Antonio,  La  administracidn  publica  (Guatemala). 

Haiti:  Price,  Hannibal,  Legislation  haitienne.  Cours  de  droit  administratif,  .  .  . 
2.  ed.,  Havre,  1910. 

Paraf/aaij:  Ijey  de  organizaci6n  administrativa  (Asuncion),  1908. 

Peru:  Rios,  Ricardo  R.,  Legislacion  administrativa  y  manuel  de  funcionarios 
j)ublicos,  Lima,  Moreno,  1907-,  Vol.  1  and  cont. 

Salvador:  Organizaci6n  politica  y  administraci6n  de  el  Salvador.  Codificacion  de 
las  leyes  politicas  y  administrativas  vigentes  (El  Salvador). 

Uruguay:  Varela,  Luis  Vicente,  C6digo  de  procedimientos  administrativos  y  de 
los  contencioso  administrativo,  Montevideo,  1908;  Varela,  Luis,  Apuntes  de  derecho 
administrativo,  .  .  .  Montevideo,  1897,  2  vol.;  Varela,  Luis  Vicente,  Estudios  de 
derecho  administrativo,  .  .  .  Montevideo,  1901-6,  2  vol. 


WHEN   STATE    IS    RESPONSIBLE,    AND    INCIDENCE    OF   LIABILITY      123 

compensating  individuals  for  losses  incidental  to  the  operation  of  the 
state's  public  or  police  power  differs  greatly  from  country  to  country. 
To  some  extent  the  question  will  be  discussed  below.  For  the  pres- 
ent it  may  merely  be  noted  that  the  more  important  countries  of 
Europe  are  greatly  widening  the  sphere  of  state  responsibility  for  the 
losses  imposed  upon  individuals  through  the  exercise  of  the  public 
power  and  especially  is  this  the  case  where,  in  countries  like  France, 
an  administrative  jurisdiction  controls  acts  of  administration.  Many 
publicists  therefore  profess  to  note  an  abandonment  of  the  time- 
honored  distinction  between  acts  of  gestion  and  acts  of  public  power  as 
a  criterion  of  state  responsibility,  and  it  is  unquestionably  true  that 
recent  decisions  have  greatly  weakened  the  force  of  the  distinction.  ^ 

Finally,  in  addition  to  the  differences  as  to  substantive  responsi- 
biUty,  there  is  to  be  noted  a  wide  variation  in  the  remedies  offered 
to  individuals  injured  through  official  action.  In  some  countries,  as 
in  France  and  Italy,  recourse  may  be  had  to  the  administrative 
courts  by  way  of  annulment  for  acts  in  excess  of  jurisdiction  or  power, 
or  misuse  of  authority  by  officers.  This  remedy  does  not  he  in  Bel- 
gium and  some  other  states,  like  the  Scandinavian  countries,  where 
there  are  no  administrative  courts  and  where  judicial  control  is  ex- 
tremely Umited.  In  the  United  States  and  Great  Britain,  the  judicial 
control  through  the  use  of  injunction  and  mandamus  effects  the  same 
purpose.^  In  some  countries  the  government  is  made  primarily  re- 
sponsible for  the  defective  operation  of  the  public  administration,  at 
least  for  acts  not  attributable  to  the  personal  malice  or  intentional 
wrong-doing  of  the  officer.  This  is  the  system  in  force  with  various 
modifications  in  the  countries  of  Western  Europe.  In  France,  the 
responsibility  of  the  state  is  exceedingly  wide,  in  Austria  very  narrow. 
In  Germany,  distinctions  are  made  between  the  lawful  and  unlawful 
exercise  of  the  public  power,  a  special  statute  being  a  necessary  con- 

^  Teissier,  G.,  La  responsibilite  de  la  puissance  publique,  Paris,  1906;  Sourdois, 
Jean,  De  revolution,  du  fondement  et  de  I'etendue  de  la  responsabilite  de  I'Etat, 
Bordeaux,  1908,  ch.  V.  Tirard,  Paul,  De  la  responsabilite  de  la  puissance  publique, 
Paris,  1906,  p.  171  et  seq.,  gives  an  account  of  the  recent  decisions  of  the  French 
Conseil  d'Etat  which  indicate  the  new  tendency  to  widen  the  sphere  of  state  respoa- 
sibiUty.    See  also  Otto  Gierke  in  28  Deutscher  Juristentag,  I,  102  et  seq. 

*  Laferri^re,  op.  cit.,  I,  26  et  seq. 


124  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

dition  for  responsibility  in  the  former  ease.  Since  the  Prussian  act 
of  August  1,  1909,  and  the  imperial  act  of  May  22,  1910,  the  state 
by  law  has  assumed  responsibility  for  the  unlawful  acts  of  officers. 
Something  of  the  same  development  may  be  noted  in  recent  statutes 
of  Salvador  and  Venezuela.  In  Switzerland  and  Hungary,  the  re- 
sponsibility of  the  state  is  largely  subsidiary  to  that  of  the  offending 
officer.^  In  some  countries,  as  in  Austria,  Portugal,  Greece,  Servia, 
and  many  of  the  countries  of  Latin-America,  the  responsibility  of  the 
wrong-doing  officer  is  increased  in  direct  ratio  to  the  decrease  in  the 
responsibility  of  the  state.-    In  the  United  States  and  Great  Britain 

'  tjber  die  Entschadigung  fiir  Einwirkungen  der  offentlichen  Gewalt  in  die  Privat- 
rechtsphare  by  Walther  Perlmann  in  34  Ztschr.  f.  d.  privat-  u.  off.  Recht,  57-122  and 
Studien  zur  Frage  der  Schadenshaftung  des  Staates  und  ihrer  Geltendmachung,  by 
Perlmann  in  24  Archiv.  f.  off.  Recht  (1909),  520-571;  Die  direkte  oder  subsidiare 
Haftung  des  Staates  und  der  Gemeinden  fiir  Versehen  u.  Vergehen  ihrer  Beamten 
und  Angestellten  by  E.  Ziegler  in  7  (n.  f.)  Ztschr.  f.  schweiz.  Recht  (1888),  481-562. 

2  La  responsabilita  dci  pubblici  funzionarii  by  G.  Quaranta,  16  II  Filangieri,  273- 
297. 

Portugal,  constitution  of  April  29,  1826,  art.  145,  §  27. 

Austria,  Perlmann,  op.  cit.,  p.  109.  See,  however,  Ruzicka,  Ernst,  Die  Entscha- 
digungsklage  wegen  iibler  obligkeitlicher  Verwaltung,  Wien,  1913,  in  which  the 
author,  on  the  basis  of  the  decree  of  Feb.  13,  1789,  finds  a  wide  range  of  state  respon- 
sibility to  individuals,  and  almost  no  liability  of  the  officer. 

Brazil,  Constitution  of  1889,  art.  60;  Mexico,  constitution  of  1857,  arts.  103,  104. 
In  other  countries  of  Latin-America,  the  liability  of  officers  is  limited  to  certain 
circumstances,  e.  g.,  injuries  inflicted  in  the  course  of  revolutions. 

Venezuela,  Constitution  of  April  27,  1904,  Title  IV,  art.  27;  Title  VIII,  art.  115 
(Rodriguez,  Amer.  Const.  I,  205,  229);  decree  of  Feb.  14,  1873,  art.  3.  By  decree 
of  Nov.  13,  1912,  the  state  reserves  a  right  of  subrogation  against  the  officer,  if  it 
must  pay  a  diplomatic  claim. 

Salvador,  Legislative  decree  of  May  10,  1910,  grants  individuals  a  right  to  sue 
the  state.    See  Exposicion  de  motivos,  by  Salvador  Rodriguez.    Libro  rosado. 

Haiti,  Constitution  of  Oct.  9,  1889,  art.  185  (Rodriguez,  II,  85). 

Ecuador,  Constitution,  art.  39  (Rodriguez,  II,  284);  Salvador,  Constitution, 
art.  138  (Rodriguez,  I,  294);  Bohvia,  Constitution,  art.  Ill  (Rodriguez,  II,  441); 
see  also  Tchernoff,  Protection  des  nationaux,  292;  Calvo,  op.  cit.,  §  1263. 

As  in  most  state  systems  founded  upon  Roman  law,  the  state  in  Latin-America 
generally  can  be  sued.  It  is  expressly  provided  for  in  the  following  constitutions  and 
laws. : 

Argentine  constitution.  Art.  100,  Rodriguez,  Vol.  I,  pp.  127-8;  Brazil  constitution, 
Art.  60,  ibid.,  Vol.  I,  p.  155;  Colombia  constitution.  Art.  151,  ibid.,  Vol.  II,  p.  355; 
Costa  Rica  constitution.  Art.  46,  ibid.,  Vol.  I,  j).  332;  Venezuela  constitution.  Art.  14, 
ibid.,  Vol.  I,  p.  225;  Brazil,  law  of  November  20,  1894,  Collecgao  das  Leis,  1894, 


ACTS    OF   LEGISLATION — NO   RESPONSIBILITY   THE    RULE  125 

the  responsibility  of  the  state  outside  of  contractual  relations  is  ex- 
ceedingly limited.  By  statute  certain  invasions  of  property  rights 
in  the  public  interest  are  compensated — thus,  by  state  law,  the  duty 
to  make  compensation  is  at  times  imposed  upon  the  state  for  the 
destruction  of  diseased  animals;  or  of  houses,  to  prevent  the  spread  of 
a  conflagration;  for  the  injuries  to  individuals  arising  out  of  erroneous 
decisions  of  health  officers  in  imposing  restrictions  upon  persons  sus- 
pected of  contagious  diseases,  etc.  On  the  other  hand,  the  responsi- 
bility of  officers  is,  in  theory  at  least,  exceedingly  broad.  We  shall 
examine  hereafter  the  many  limitations  on  this  supposedly  wide 
responsibiUty.  One  tendency  with  respect  to  official  responsibility 
is  manifest  on  all  sides — that  is,  in  the  interests  of  good  adminis- 
tration, to  protect  the  officer  from  liability  for  his  acts  performed  in 
good  faith.  This  tendency  is  compensated  in  Europe  by  increasing 
the  responsibility  of  the  state;  in  Anglo-American  law,  however, 
such  a  compensatory  tendency  is,  as  yet,  hardly  evident. 

THE    STATE    AS   A    PUBLIC    POWER 

The  study  of  the  remedies  of  the  individual  and  the  respective 
responsibilities  of  state  and  officer  can  perhaps  be  made  most  clear 
by  examining  the  state  in  its  threefold  functions  as  a  public  power, 
namely,  the  legislative,  the  judicial,  and  the  executive  or  adminis- 
trative— the  last,  for  our  purposes,  the  most  important  of  all. 

§  51.  Acts  of  Legislation — No  Responsibility  the  Rule. 

It  is  manifest  that  acts  of  legislation  may  seriously  interfere  with 
private  interests  and  in  some  cases  even  private  rights.  An  act  of 
the  legislature  is  almost  always  general  and  impersonal  in  its  nature 
and  can  only  in  exceptional  circumstances  involve  the  state  in  pecun- 

Vol.  I,  p.  16  el  seq.;  Colombia,  law  of  August  31,  1886,  Arts.  1,  2,  77  State  Papers, 
p.  807;  Venezuela,  law  of  April  16,  1903,  Art.  16,  96  State  Papers,  p.  647  el  sea.; 
Decree  of  Nov.  13,  1912,  9  Bl.  f.  vergl.  Rechtsw.  (1913),  Col.  71-74;  Guatemala, 
law  of  February  21,  1894,  Art.  81,  86  State  Papers,  p.  1286  et  seq.;  Salvador, 
Decree  of  May  10,  1910,  Libro  rosado.  The  state  is  practically  alwaj's  suable  for 
its  acts  as  a  fiskus. 

The  supreme  court  is  usually  given  jurisdiction  of  suits  in  which  the  government 
is  a  party. 


126  THE  DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

iary  liability.  For  example,  the  establishment  of  a  state  industrial 
monopoly,  as  in  the  case  of  the  recent  Italian  law  of  April  4,  1912  and 
the  Uruguayan  law  of  1912,  establishing  a  state  insurance  monopoly, 
seriously  interferes  with  private  interests.  Yet,  in  the  absence  of  a 
special  legislative  provision  granting  an  indemnity  to  private  interests 
thus  prejudiced,  there  is  no  municipal  Uability  of  the  state. ^  France 
in  1835  established  a  tobacco  monopoly  and  on  other  occasions  by 
an  act  of  legislation  interfered  similarly  with  the  enjoyment  of  private 
rights  without  paying  compensation.^  On  the  other  hand,  in  1872, 
when  France  by  legislation  established  a  match  monopoly,  and  when 
on  March  29,  1903,  Italy  undertook  the  municipal  ownership  of  cer- 
tain public  services  a  statutory  indemnity  was  provided  for  the  cor- 
porations and  individuals  thereby  injured.^    In  France,  in  which  coun- 

^  Gaston,  Jeze,  De  la  responsabilite  pecuniaire  de  I'Etat  italien  envers  les  nation- 
aux  et  les  etrangers,  a  raison  de  I'etablissement  d'un  monopole  public  des  assurances 
sur  la  vie,  29  Rev.  Dr.  Pub.  (1912),  433-452.  See  also  on  the  Uruguayan  statute, 
article  by  same  author,  30  Rev.  Dr.  Pub.  (1913),  58  et  seq.  On  the  Italian  law  see  the 
exhaustive  opinion  (Consultation)  by  E.  Clunet,  with  opinions  of  many  prominent 
jurists,  rendered  in  behalf  of  the  insurance  companies,  Paris,  Jan.  28,  1912  (51  p.) 
to  the  effect  that  such  a  law  was  a  violation  of  the  property  rights  of  foreigners,  and 
the  state  incurred  an  international  responsibility  for  such  injury,  on  the  theory  of 
expropriation.  To  the  effect  that  it  is  not  in  violation  of  international  law,  but  that 
on  equitable  grounds  Italy  should  grant  compensation  to  foreigners,  see  Wehberg,  H. 
Das  Volkerrecht  u.  das  italienische  Staatsversicherungsmonopol,  Wien,  1912,  25  p. 

Clunet  states  (p.  15)  that  Uruguay,  on  the  protests  of  Great  Britain  and  France 
receded  from  its  position  in  establishing  a  monopoly,  and  limited  itself  to  operating 
an  insurance  fund  in  competition  with  private  companies.  Foreign  protests  against 
the  Italian  law  have  had  no  such  effect.  Duguit  believes  that  an  action  for  indem- 
nity should  lie,  even  in  the  absence  of  legislative  provision,  whenever  the  state  es- 
tablishes a  monopoly.  De  la  responsabilite  pouvant  naitre  a  I'occasion  de  la  loi, 
27  Rev.  Dr.  Pub.  (1910),  637-666.  Ibid.  George  Scelle  on  the  Uruguayan  law  in  30 
Rev.  Dr.  Pub.  (1913),  637,  653  et  seq.  On  the  Italian  law  see  also  C.  Audinet  in 
20  R.  G.  D.  I.  P.  (1913),  5  et  seq.,  and  Lordi,  L.,  Responsabilite  int.  de  I'Etat  italien 
k  raison  de  I'etablissement  du  monopole,  etc.,  Rome,  1913.  See,  however,  J.  Bar- 
th^lemy  in  24  Rev.  Dr.  Pub.  (1907),  92-101.  Other  illustrations  of  successful  diplo- 
matic protests  against  acts  of  legislation  impairing  the  rights  of  foreigners,  and  the 
award  of  indemnities,  are  cited  infra,  §  75. 

2  Teissier,  op.  cit.,  16.  A  noteworthy  case  is  that  of  the  law  of  Sept.  18,  1870  open- 
ing to  the  general  public  the  profession  of  printer  and  bookseller,  which  theretofore 
had  been  limited  to  a  few  licensed  persons,  whose  rights  were  very  valuable.  No 
indemnity  was  granted.    (Decision  of  the  Conseil  d'Etat,  April  4,  1879.) 

'  Other  states  have  made  similar  provision  for  individuals  injured  by  an  act  of 


ACTS   OF  LEGISLATION — NO   RESPONSIBILITY   THE   RULE  127 

try  this  question  has  been  more  exhaustively  studied  than  elsewhere, 
it  was  formerly  the  case  that  executive  regulations  carrying  out  a 
statute  were  assimilated  to  acts  of  the  legislature  in  the  matter  of 
immunity  from  responsibility,  provided  they  were,  like  legislation, 
general  and  impersonal.  This  is  still  the  general  rule,  though  the 
ade  reglementaire  has  in  numerous  cases  within  recent  years  been 
regarded  as  an  act  of  administration  simply,  and  subject  to  its  criteria 
in  the  matter  of  state  responsibility.^  The  acts  of  subordinate  com- 
mittees of  the  legislature  or  of  bodies  to  whom  the  legislature  has 
delegated  a  portion  of  its  sovereign  powers  likewise  are  mthdrawn 
from  the  revisionary  powers  of  the  highest  administrative  court  (the 
Conseil  d'Etat),  and  from  the  possibility  of  state  responsibility.^ 

An  important  limitation  upon  the  immunity  of  the  state  from  pe- 
cuniary responsibility  for  acts  of  legislation  is  contained  in  the  law 
of  France  and  probably  of  other  continental  countries.  French  courts 
have  frequently  held  the  state  liable  in  damages  to  a  concessionary 
with  whom  it  has  contracted,  for  the  injuries  caused  him  by  the  enact- 
ment of  new  legislation  which  increases  the  burdens  of  his  concession- 
contract.  There  is  thus  a  contractual  limitation  upon  the  irrespon- 
sibility of  the  state  for  legislative  acts.  The  payment  of  indemnity 
for  increase  of  the  contractor's  burdens  by  legislation  is  expressly 
provided  for  in  numerous  concession-contracts.  When  not  so  pro- 
legislation;  c.  g.,  Switzerland  indemnified  the  owners  of  existing  distilleries  when 
the  Confederation  undertook  the  manufacture  and  importation  of  spirits  (art.  18 
of  the  federal  law  of  Dec.  23,  1886).  Switzerland  even  indemnified  persons  financially 
interested  in  the  culture  of  absinthe,  after  having  prohibited  trade  in  the  liquor 
drawn  from  that  plant  (art.  4  of  the  federal  law  of  June  24,  1910),  20  R.  G.  D.  I.  P. 
(1913),  21.  Opinion  of  Ernest  Roguin  in  Clunet's  Consultation,  supra,  49.  A  bill 
now  pending  in  France  (Feb.,  1915),  prohibiting  the  sale  of  absinthe,  provides  for 
indemnities  to  manufacturers. 

'  25  Rev.  Dr.  Pub.  38  et  seq.  Despax,  De  la  responsabihte  de  I'Etat  en  matiere 
d'actes  legislatifs  et  reglementaires,  Paris,  1909;  Le  Roux,  Pierre,  Essai  sur  la  notion 
de  la  responsabilit6  de  I'Etat,  Paris,  1909,  p.  67;  Tirard,  op.  cit.,  150;  Sourdois,  op.  cit., 
127.  The  close  relation  between  a  police  ordinance  (which  ordinarily  involves  no 
pecuniary  liability  of  the  state)  and  an  act  of  legislation  is  apparent.  Again,  the 
French  courts  have  occasionally  had  diflSculty  in  distinguishing  whether  an  execu- 
tive regulation  is  an  acie  reglementaire,  an  act  of  legislation,  or  an  administrative  act. 

^  Teissier,  G.,  V°  Responsabilite,  in  Bequet's  Repertoire  de  droit  administratif, 
§  27  and  cases  there  cited. 


128  THE    DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

vided  for,  the  legislation  must  seriously  prejudice  the  rights  of  the 
contractor,  and  the  damage  must  be  direct,  special,  and  material, 
before  an  action  will  lie.  Thus  a  decrease  in  the  territorial  limits  of  a 
district  in  which  a  notary  was  authorized  to  exercise  his  functions, 
thereby  diminishing  his  field  of  income  did  not,  in  France,  render  the 
state  Uable.^  Where  the  action  lies,  the  statute  or  decree  is  not 
declared  void;  the  state  is  merely  held  liable  for  the  special  injury. 
It  is  difficult  to  specify  the  nature  of  the  legislative  act  or  contract 
or  the  extent  or  directness  of  the  prejudice  which  would  involve  the 
responsibility  of  the  state.  The  decided  cases  are  the  only  reliable 
criterion.^ 

The  Umitation  upon  legislative  irresponsibifity  by  contract  pre- 
viously concluded  between  the  state  and  a  private  person  is  of  ex- 
ceedingly limited  application  in  the  United  States.  It  has  been  de- 
cided by  the  Court  of  Claims  that  the  Government,  as  a  contractor, 
cannot  be  held  liable  for  its  public  acts  as  a  sovereign.  For  example, 
a  new  tariff  act  increasing  the  cost  of  goods  to  be  furnished  under  a 
prior  contract,  constitutes  no  breach  of  the  contract  by  the  United 
States.^  Nor  does  a  change  of  policy  on  the  party  of  the  government 
involve  any  pecuniary  liability.^  The  constitutional  guarantee  against 
the  impairment  of  the  obligation  of  contract  by  legislation,  would 
seem  to  apply  to  contracts  concluded  between  a  state  of  the  United 
States  and  a  private  citizen.  The  citizen,  however,  cannot  without 
its  consent  sue  the  state  for  damages  in  its  own  or  in  the  federal 
courts.  His  rights  are  protected  as  far  as  possible  by  holding  the 
legislation  unconstitutional  either  under  the  ''obligation  of  contract" 
or  "due  process"  clause,  which  latter  would  apply  also  to  federal 
legislation  violating  contracts  concluded  by  the  United  States.    In  a 

>  Aff.  Payerne,  Cons.  d'Etat,  Jan.  13,  1865,  Leb.  65,  p.  52. 

"^  Tirard,  op.  cit.,  238-241  and  cases  cited;  Teissier,  op.  cit.,  §§  25,  26,  162;  Ripert, 
H.,  Des  rapports  entre  les  pouvoirs  de  police  et  les  pouvoirs  de  gestion  dans  les  situa- 
tions contractuelles,  22  Rev.  Dr.  Pub.  (1905),  1-39;  Jeze  in  24  Rev.  Dr.  Pub.  (1907), 
440  :tiid  452;  25  ibid.  (1908),  61. 

»  Deming  v.  U.  S.,  1  Ct.  CI.  190;  Jones  and  Brown  v.  U.  S.,  1  Ct.  CI.  383;  Wilson  v. 
U.  S.,  11  Ct.  CI.  513.  But  the  highest  executive  officers  appear  to  have  authority 
to  relieve  contractors  from  inequitable  burdens  thrown  upon  them  by  such  legislation, 
28  Op.  Atty.  Gen.  121  (Wickersham,  Atty.  Gen.,  Dec.  22,  1909). 

*  Kendall  v.  U.  S.,  1  Ct.  CI.  201;  7  Wall.  113. 


JUDICIAL  ACTS  129 

few  countries  besides  the  United  States,  courts  have  the  power  to 
declare  legislation  unconstitutional,^  although  there  is  no  pecuniary 
liabilit}^  of  the  state  on  account  of  the  private  damage  resulting  from 
the  unconstitutional  statute. 

Legislative  officers  are  universally  immune  from  civil  liability  for 
their  official  acts.  Their  responsibility  is  usually  political  and  for 
penal  offenses  they  are  amenable  to  the  criminal  courts. 

It  will  be  observed  later  that  in  the  case  of  international  claims  for 
injuries  to  aliens  arising  out  of  acts  of  legislation,  a  government  can- 
not always  protect  itself  from  liability  by  alleging  that  a  certain  stat- 
ute or  decree  violating  private  rights  was  an  act  of  legislation  and  of 
public  power,  which  in  municipal  law  rendered  the  state  immune 
from  responsibiUty. 

§  52.  Judicial  Acts. 

The  judicial  functions  of  the  state  being  in  the  highest  sense  of  a 
sovereign  character  relieve  the  state  on  principle  from  all  civil  lia- 
bility, regardless  of  the  injury  sustained  by  individuals  from  malad- 
ministration of  justice.  The  rehabilitation  of  wrongly  convicted 
persons  is,  however,  provided  for  in  most  civiHzed  states.  Within 
recent  years,  in  addition,  practically  all  the  more  important  countries 
of  continental  Europe  (Germany,  France,  Norway,  Denmark,  Sweden, 
Austria-Hungary,  Spain,  Portugal,  several  cantons  of  Switzerland),  and 
Mexico  as  well,  have  enacted  statutes  granting  an  action  for  indemnity 
against  the  state,  under  certain  circumstances,  for  errors  of  criminal 
justice,  i.  e.,  for  the  erroneous  detention,  conviction  and  imprison- 
ment of  an  individual.-     A  bill  to  this  effect  has  recently  been  in- 

^  Full  judicial  control  over  legislation  appears  to  exist  in  Argentine,  Greece,  Norway 
and  Roumania.  In  Australia,  Canada  and  the  South  African  Union  it  is  more  limited. 
In  various  countries,  e.  g.,  Portugal,  Nicaragua,  Honduras,  Panama,  Cuba,  Haiti 
Venezuela,  Costa  Rica,  Paraguay  and  Bolivia  the  constitution  expressly  providet 
that  the  courts  shall  disregard  unconstitutional  laws,  but  in  some  of  these  countries 
€.  g.,  Haiti,  the  power  is  never  exercised,  and  in  others,  e.  g.,  Bolivia  and  Costa  Rica 
the  legislature  has  power  to  construe  the  constitution. 

^  The  system  differs  somewhat  from  country  to  country.  The  details  are  worked 
out  comparativelj'  in  Senate  Doc.  974,  62nd  Cong.,  3rd  sess.,  "State  indemnity  for 
errors  of  criminal  justice,"  by  Edwin  M.  Borchard. 


130  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

troduced  in  Congress  and  in  several  states  of  the  United  States. 
In  Wisconsin  and  California  it  has  already  become  a  law.^ 

The  liabiUty  of  judicial  officers  varies  considerably  in  Anglo-Ameri- 
can and  in  continental  law.  The  overwhelming  weight  of  authority 
in  Anglo-American  law  is  to  the  effect  that  the  judge  having  juris- 
diction of  subject-matter  and  of  parties,  whether  his  jurisdiction  be 
general  or  limited,  is  not  civilly  liable  where  he  acts  erroneously, 
illegally,  or  irregularly,  nor  is  he  liable  even  for  a  failure  to  exercise 
due  and  ordinary  care,  nor  where  he  acts  from  malicious  or  corrupt 
motives.  Excess  of  jurisdiction  must,  however,  be  distinguished  from 
absence  of  jurisdiction.  Where  the  judge  knowingly  acts  without 
jurisdiction,  he  forfeits  his  judicial  immunity.^  The  tendency  is  to 
assimilate  judges  of  limited  jurisdiction  to  those  of  higher  courts 
in  their  immunity  from  civil  suit,  the  only  distinction  being  that  in 
the  case  of  superior  judges  their  competence  is  presumed,  whereas  in 
the  case  of  judges  of  limited  jurisdiction,  they  must  prove  it.^  Quasi- 
judicial  officers  or  officers  exercising  discretionary  power,  are  in  gen- 
eral held  immune  from  liability  when  they  have  acted  within  their 
jurisdiction  honestly  and  without  malice.'* 

In  countries  of  the  civil  law  the  liability  of  judges  is  much  greater. 
On  principle  the  continental  judge  is  liable  for  his  tortious  acts  in 
excess  or  abuse  of  his  power,  and  in  Austria-Hungary  the  state  is 
subsidiarily  Uable.^ 

1  Wisconsin,  Chapter  189  of  the  laws  of  1913,  creating  §  3203a  of  the  Statutes; 
California,  Act  of  May  12,  1913,  Chap.  165  of  the  laws  of  1913. 

2  Mechem,  F.  R.,  Public  offices  and  officers,  Chicago,  1890,  §§  628,  629;  Bradley  v. 
Fisher,  13  Wall.  335,  351;  Grove  v.  Van  Duyn,  44  N.  J.  L.  654;  Hughes  v.  McCoy, 
11  Colo.  591;  Throop,  Public  officers.  New  York,  1892,  §  713;  23  Cyc.  568-569  and 
authorities  there  cited.  By  statute,  it  is  in  some  states  provided  that  a  judge  is  liable 
in  damages  for  the  arbitrary  refusal  of  a  writ  of  habeas  corpus.  This  exception  to 
the  general  rule  is  rarely  invoked. 

^  Mechem,  op.  cit.,  §  630. 

*  Ibid.,  §§  63&-643. 

'  Sec,  for  example,  Austria,  art.  9  of  the  organic  law  of  Dec.  21,  1867,  and  the  law 
of  July  12,  1872,  on  the  judicial  power  and  the  right  of  action  for  torts  by  judicial 
officers  in  the  exercise  of  their  functions.  Also,  Spain,  Ley  de  Enjuiciamiento  Civil, 
1881,  art.  903  el  secj.;  Civil  Code,  §§  203,  232;  penal  code,  §§  346-353.  Section  505 
of  the  French  code  of  civil  procedure  provides  that  judges  are  liable  to  civifsuit  in 
the  following  cases:  First,  if  there  has  been  willful  wrongdoing  {dol),  fraud  (frande), 


JUDICIAL   CONTROL  .^l 


EXECUTIVE   AND   ADMINISTRATIVE   ACTS 

§  63.  Judicial  Control. 

The  executive  power  has  two  functions:  first,  to  govern;  second, 
to  administer  the  law.  In  the  sphere  of  government  falls  the  opera- 
tion of  the  public  powers  according  to  the  constitution,  especially 
intercourse  with  foreign  nations.  As  an  administrator,  the  state 
supervises  the  daily  application  of  the  laws  in  the  relations  between 
citizens  and  the  administration  and  between  the  various  organs  of 
administration.  For  the  first  class,  acts  of  government  executed  usually 
by  the  highest  organs  of  the  state,  the  legislature  or  the  judiciary,  it 
has  been  seen  that  the  state  is  not  responsible,  except  politically,  but 
that  in  certain  cases  the  legislature  may  decree  compensation  for  special 
sacrifices  imposed  on  individuals  in  the  interests  of  the  public.  This 
has  been  done  on  numerous  occasions  in  France  by  indemnifjdng  the 
victims  of  war  damages  from  the  state  treasury.  In  the  case  of  ad- 
ministrative acts,  a  remedy  for  their  illegal  exercise  by  administra- 
tive officers  is  provided  either  by  recourse  to  the  courts  or  superior 

or  extortion  committed  either  in  the  proceedings  or  in  the  judgment;  .  .  .  Fourthly, 
for  a  denial  of  justice.  On  the  French  law,  see  Biderman,  J.,  La  responsabiUt^  dea 
magistrats  envers  les  particuUers,  Besangon,  1912.  The  German  civil  code,  §  839, 
par.  1,  provides:  "If  an  officer  willfully  or  negligently  commits  a  breach  of  official 
duty  incumbent  upon  him  as  toward  a  third  party,  he  shaU  compensate  the  third 
party  for  any  damage  arising  therefrom."  Paragraph  2  provides  that  "if  an  officer 
commits  a  breach  of  his  official  duty  in  giving  judgment  in  an  action,  he  is  not  re- 
sponsible for  any  damage  arising  therefrom,  unless  the  breach  of  duty  is  punished 
with  a  pubhc  penalty  to  be  enforced  by  criminal  proceedings."  This  last  clause 
applies  to  cases  of  willful  perversion  of  justice  under  §  336  of  the  penal  code  and 
includes  mahcious  or  corrupt  exercise  of  the  judicial  powder.  The  commentaries  of 
Planck  and  Staudinger  explain  the  narrow  limitations  of  par.  2  just  quoted.  It 
appUes  first  to  a  final  judgment  only  and  does  not  excuse  gross  neghgence,  maUce,  or 
.corruption.  For  all  intermediate  and  interlocutory  orders  and  decrees — as  in  neg- 
Ugently  ordering  an  arrest  or  attachment,  dechning  to  receive  evidence,  failure  to 
call  a  witness  demanded  by  a  defendant,  a  disregard  of  undisputed  testimony — the 
judge  is  civilly  hable  and  is  not  protected  by  the  immunity  granted  in  par.  2  of  §  839. 
See  Noldeke,  Die  civilrechthche  Haftung  des  Richters  nach  dem  B.  G.  B.  in  42 
Gruchot's  Beitrage  zur  Erlauterung  des  deutschen  Rechts  (1898),  795,  at  pp.  808, 
821-822;  Dehus,  Haftpfficht  der  Beamten,  Berhn,  Guttentag,  1899,  pp.  206  et  seq. 
A  brief  comparative  statement  of  French  and  Enghsh  law  as  to  civil  UabiUty  of 
judges  will  be  found  in  27th  Report,  International  Law  Asso.  (Paris  session,  1912) 
659-660. 


132  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

administrative  body  for  their  annulment  as  in  excess  of  power  or 
ultra  vires  or  for  their  amendment  on  account  of  illegaUty,  irregularity 
or  misapplication,  as  in  France,  or  by  the  use  of  the  extraordinary 
legal  remedies  (or  appeal  in  the  federal  courts)  if  in  violation  of  law 
or  of  private  rights,  as  in  the  United  States. 

The  criteria  between  acts  of  government  and  acts  of  administration 
have  varied  from  time  to  time  and  only  the  decisions  of  the  admin- 
istrative courts  have  furnished  a  safe  basis  for  determination.  The 
criterion  of  an  act  of  government,  in  France  for  example,  has  varied 
from  the  political  nature  of  the  act  to  its  extrinsic  form  or  purpose, 
and  finally  to  its  intrinsic  nature,  which  last  seems  to  have  become 
the  prevailing  doctrine.^  By  decisions  of  the  Trench  Council  of 
State  it  has  in  a  general  way  been  determined  that  the  following 
broad  divisions  of  state  activity  embrace  acts  of  government,  for 
which  there  is  no  state  responsibiUty :  the  relations  of  the  head  of 
the  state  with  the  legislature,  international  relations,  acts  of  war  and 
diplomatic  relations,  vital  measures  concerning  the  internal  and 
external  safety  of  the  state,  such  as  the  proclamation  of  martial  law  or 
a  state  of  siege,  the  exercise  of  the  pardoning  power,  etc.  These 
governmental  acts,  when  constitutionally  exercised,  escape  judicial 
control  in  all  countries. - 

When  we  come  to  the  injuries  caused  by  the  executive  power  in  the 
exercise  of  its  administrative  function,  we  enter  a  more  difficult  field. 
The  state  necessarily  fulfills  its  various  duties  of  administration 
through  officers  and  inferior  administrative  bodies.  What  shall  be 
the  system  of  distribution  of  the  losses  entailed  by  a  faulty  or  de- 
fective operation  or  exercise  of  the  administrative  function?  In  other 
words,    to   what   extent   does   the  individual   injured,    the   offending 

*  Teissier,  op.  cit.,  129.  Des  actes  de  gouvernement  by  Bremond,  5  Rev.  Dr. 
Pub.  (1896),  23-75,  at  p.  29. 

2  The  tendency  is  to  narrow  the  sphere  of  these  highly  privileged  acts,  and  to 
enlarge  the  category  of  administrative  acts,  which  are  subject  to  judicial  review. 
F'abre,  J.,  Des  actes  de  gouvernement,  MontpelUer,  1898;  Michoud,  L.,  Des  actes 
de  gouvernement  in  1  Annales  de  I'enseignement  superieur  de  Grenoble  (1889), 
No.  2,  p.  57;  Le  Courtois,  M.,  Des  actes  de  gouvernement,  Paris,  1899.  Duguit  iri 
his  article  "The  French  administrative  courts,"  29  Pol.  Sc.  Quar.  (1914),  385,  40i* 
minimizes  the  importance  of  the  distinction  between  actes  de  gouvernement  and  acle^ 
de  gestiori. 


JUDICIAL   CONTROL  133 

ofl&cer,  and  the  state  bear  the  loss  of  such  defective  operation  of  the 
public  service?  ^ 

'  The  theory  of  state  responsibility,  and  its  foundation  in  private  or  public  law  have 
engaged  the  attention  of  many  of  the  most  prominent  jurists,  who  in  turn  have  greatly 
influenced  the  decisions  of  continental  courts.  In  contractual  relations,  there  has 
been  no  dispute — the  principles  of  the  civil  law  apply  to  individual  and  to  state  alike. 
But  is  the  state  responsible  for  tortious  acts  of  officers?  If  so,  why  and  according 
to  what  principles?  These  are  more  difficult  questions.  Modern  codes  and  courts 
have  decided  the  first  question  affirmatively — a  juristic  person  may  be  liable  for 
tort.  But  as  the  relation  between  state  and  officer  is  not  one  of  agencj'  or  of  private 
law,  the  state  in  France  is  not  Uable  according  to  private  but  according  to  pubUc 
law  principles.  In  Germany  private  law  is  more  generally  applied  to  the  state. 
The  application  of  private  law  to  wrongful  acts  of  officers  and  defective  acts  of  ad- 
ministration was  supported  by  Gierke,  Meucci,  Laurent,  Aubry  and  Rau  and  Demo- 
lombe,  and  with  distinctions  between  acts  of  public  power,  to  which  it  would  not  be 
applicable,  and  acts  of  gestion,  to  which  it  would  be,  it  was  upheld  by  Zachariae, 
Primker,  Loening  and  Piloty,  by  Ziegler,  by  Bonasi  and  Giorgi,  by  Giron,  and  by 
Larombiere  and  Michoud.  See  exact  citations  to  the  works  of  these  jurists  in  article 
by  Maurice  Hauriou,  Les  actions  en  indemnite  contre  I'Etat  pour  prejudices  causes 
dans  I'administration  publique,  6  Rev.  Dr.  Pub.  (1896),  51-65. 

The  most  widely  accepted  theories  of  pubUc  law  responsibility  have  been:  (a)  The 
assumed  guarantee  by  the  state  of  the  lawfulness  of  its  official's  acts  and  the  com- 
pulsion upon  the  individual  to  obey  the  officer.  This  theory  was  originated  in  Ger- 
many by  PfeifTer  and  Zachariae  and  has  the  support  of  Michoud  and  other  French 
jurists.  Haftung  des  Staates  aus  rechtswidrigen  Handlungen  seiner  Beamten  by 
H.  A.  Zachariae.  Ztschr.  f.  d.  ges.  Staatswissenschaft,  1863,  582-652.  Loening,  E., 
Die  Haftung  des  Staates  aus  rechtswidrigen  Handlungen  seiner  Beamten  nach 
deutschem  Privat-  u.  Staatsrecht.  Frankfurt,  1879.  Die  Haftung  des  Staates  fiir 
rechtswidrige  Handlungen  und  Unterlassungen  der  Beamten,  by  R.  Piloty,  Hirth's 
Annalen  des  deutschen  Reichs,  1888,  245-271,  gives  a  full  account  of  the  theories, 
as  does  Michoud  in  his  noteworthy  article  De  la  responsabilite  de  I'Etat  a  raison  des 
fautes  de  ses  agents,  3  Rev.  Dr.  Pub.  (1895),  401-429;  and  4  ibid.  1-31;  251-285. 
See  also  Marcq,  Rene,  La  responsabihte  de  la  puissance  pubhque,  Paris,  1911,  p.  316 
et  seq.;  and  Sourdois,  op.  cit.  (b)  The  theory  of  professional  risk  or  social  insurance, 
according  to  which  the  sacrifices  and  losses  entailed  bj'  injurious  acts  of  adminis- 
tration should  be  distributed  among  the  community  at  large.  This  was  until  lately 
the  theory  of  Hauriou,  a  leading  French  authority,  and  of  Otto  Mayer.  The  ques- 
tion of  fault  of  the  officer  is  immaterial  in  the  application  of  this  theory,  Hauriou, 
article  cited,  and  also  in  the  3rd  ed.  of  his  Precis,  op.  cit.,  174  et  seq.  In  the  4th  and 
following  editions,  the  theory  is  abandoned  for  the  "fault"  theory  in  acts  of  gestion, 
public  and  private  {infra,  p.  135);  Mayer,  Otto,  op.  cit.,  and  article  Die  Entscha- 
digungspflicht  des  Staates  nach  BilUgkeitsrecht,  Vortrag  in  Gehe-  Stiftung,  Dresden, 
1904.  (c)  General  equity,  the  theory  of  Bremond  and  Teissier  (Bremond,  op.  cit., 
and  Teissier,  op.  cit.)  which  is  gaining  support  in  the  recent  decisions  of  the  French 
and  German  administrative  courts.  Each  invasion  of  private  rights  and  interests 
by  the  administration  is  judged  upon  its  own  merits  in  justice. 


134  THE   DIPLOMATIC   PROTECTION  OF   CITIZENS  ABROAD 


THE   FRENCH   SYSTEM 

In  order  to  adjust  the  decisions  of  the  Council  of  State  to  a  satis- 
factory classification  and  theory  of  responsibiUty,  the  French  jurists, 
who  have  devoted  more  attention  to  this  subject  than  those  of  any 
other  country,  have  been  impelled  to  draw  fine  distinctions  among 
the  various  acts  of  administration.  These  distinctions  of  the  French 
law  have  greatly  influenced  the  Latin  countries  of  Europe  and  of 
America.  Besides,  in  France,  the  individual  enjoys  a  higher  degree 
of  protection  against  illegal,  improper,  imprudent  or  merely  injurious 
acts  of  the  administration  than  in  any  other  country.  For  these 
reasons  the  French  system  merits  special  attention  and  will  be  dis- 
cussed first. 

§  54.  Different  Classes  of  Administrative  Acts.  Recourse  of  Individual 
and  State  Responsibility. 
One  large  class  of  administrative  acts  that  may  violate  private 
rights  are  acts  of  police,  or,  as  they  are  sometimes  called,  acts  of 
authority,  or  the  exercise  of  the  police  power  in  the  general  interest 
by  ordinance  or  administrative  decree.  The  distinction  between 
acts  of  government  and  acts  of  police  is  often  vague;  the  former, 
it  can  only  be  said,  are  usually  political  in  character,  whereas  the 
latter  are  not.  These  acts  in  exercise  of  the  police  power  if  illegal 
or  in  excess  of  jurisdiction  give  rise  to  an  action  for  annulment  as  in 
excess  of  powers  or  ultra  vires  before  the  Council  of  State,  but  in 
theory  at  least  the  state  cannot  be  held  liable  in  damages.  In  recent 
years,  the  theory  has  in  several  cases  been  abandoned,  the  state  having 
been  held  pecuniarily  liable  to  individuals  for  the  defective  operation, 
even  without  fault,  of  its  police  service.  The  Council  of  State  has 
decided  that  there  is  an  excess  of  power  in  case  of  (1)  incompetence, 
when  the  administrative  authority  encroaches  upon  the  competence 
of  some  other  authority;  (2)  defect  of  form,  when  the  formalities  re- 
quired by  law  are  not  followed  by  the  administrative  authority; 
(3)  violation  of  substantive  law;  and  (4)  misuse  or  delournement  of 
power,  when  an  administrative  authority  even  though  acting  within 
its  competence  and  following  the  necessary  formalities,  uses  its  dis- 


DIFFERENT   CLASSES   OF   ADMINISTRATIVE   ACTS  135 

cretionary  power  for  purposes  other  than  those  for  which  the  power 
was  granted.^ 

Where  acts  of  police  violate  previously  concluded  contracts  between 
the  state  and  an  individual,  e.  g.,  a  permit  for  a  bridge  near  to  another, 
to  the  builder  of  which  a  monopoly  had  been  granted,  or  increase 
materially  the  burdens  of  the  contractor,  an  action  for  annulment 
or  for  damages  has  on  several  occasions  been  held  to  lie."  Moreover, 
where  acts  of  police  are  merely  disguised  acts  of  gestion,  e.  g.,  where 
they  add  to  the  financial  resources  of  the  state,  an  action  lies  against 
the  state,  as  it  does  where  by  statute  a  right  of  action  is  granted. 

The  other  large  class  of  administrative  acts  are  acts  in  administra- 
tion of  the  public  service  and  are  called  by  certain  authors  "acts  of 
public  gestion,^'  as  contrasted  with  and  yet  as  related  to  "acts  of  pri- 
vate gestion^'  or  the  administration  or  management  of  the  private 
domain  and  property  of  the  state.^  For  unlawful  acts  of  gestion,  the 
state  may  be  held  responsible  in  damages  by  means  of  the  adminis- 
trative litigation  {contentieux  administratif)  before  the  Council  of 
State,  if  an  act  of  pubUc  gestion,  or  before  the  ordinary  courts,  if  of 
private  gestion.'^    The  distinction  between  acts  of  authority  and  acts 

^  Goodnow,  op.  cit.  II,  230  citing  Aucoc,  Conferences  sur  I'administration,  I,  467. 
See  also  Wodtke,  Fritz,  Des  recours  pour  exces  de  pouvoir,  Tubingen,  1912;  Dareste, 
P.,  Les  voies  de  recours  contre  les  actes  de  la  puissance  publique,  Paris,  1914.  We  can- 
not enter  into  a  detailed  study  of  the  four  kinds  of  recourse  against  administrative 
acts:  (1)  full  jurisdiction,  which  has  the  force  of  a  judgment  and  may  reform  or  amend 
the  act;  (2)  annulment,  which  can  only  cancel  it;  (3)  interpretation;  (4)  repression, 
which  is  equivalent  to  an  injunction  or  prohibition.  See  Alcindor,  L.,  Des  differ- 
entes  espSces  de  nulht6sdes  actes  administratifs,  Paris,  1912.  See  also  H.  Berthelemy, 
De  I'exercise  de  la  souverainete  par  I'autorite  administrative,  21  Rev.  Dr.  Pub. 
(1904),  209-227;  L.  Duguit  in  29  Pol.  Sc.  Quar.  (1914),  385,  393  et  seq. 

^  Ripert's  article  supra.  See  also  section  Situations  contractuelles  in  works  cited 
on  Responsabilite  de  I'Etat. 

'  Hauriou,  Precis,  6th  ed.  410;  Bigot  d'Engente,  A.,  De  la  responsabilite  pecuniaire 
de  I'Etat  en  mati^re  d'actes  de  puissance  publique,  Paris,  1907,  p.  4. 

''  Laferriere,  op.  cit.,  II,  187,  191.  The  matter  of  appropriate  jurisdiction  is  among 
the  most  important  questions  in  French  administrative  law.  The  administrative 
courts  have  an  enumerated,  but  exceedingly  extensive  jurisdiction.  Laferridre,  I, 
674  et  seq.;  Bremond,  J.,  Traits  de  la  competence  administrative,  Paris,  1894;  De  la 
competence  dans  les  actions  en  responsabiUte  contre  I'Etat  by  J.  Perrinjaquet, 
Rev.  Gen.  du  Dr.,  1909,  112-126;  218-231.  See  also  Goodnow,  op.  cit.,  II,  226  et  seq., 
and  L.  Duguit  in  29  Pol.  Sc.  Quar.  (1914),  385,  401  showing  the  tendency  to  give  the 
administrative  courts  jurisdiction  of  all  suits  against  the  state. 


136  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

of  gestion  is  vague  and  uncertain,  and  has  been  worked  out  induc- 
tively from  the  decisions  of  the  Council  of  State  holding  the  state 
immune  from  or  subject  to  responsibility  for  particular  administrative 
acts.^ 

Among  acts  of  private  gestion  are  included  the  exercise  of  the  state's 
functions  as  a  property  owner,  as  the  entrepreneur  of  an  industry, 
such  as  the  tobacco  and  match  industry  in  France  and  Italy  and  the 
porcelain  industry  in  Prussia,  or  in  the  operation  of  certain  public 
utilities,  such  as  state-owned  railroads  in  most  of  the  countries  of 
Europe.  In  these  matters,  either  by  legislation  or  judicial  decision, 
the  state  in  France  as  elsewhere  is  subject  to  the  principles  of  pri- 
vate law. 

The  liability  for  acts  of  public  gestion  or  operation  of  public  works 
is  determined  according  to  principles  other  than  those  governing  pri- 
vate legal  relations.  In  the  celebrated  Blanco  decision  which  deter- 
mined the  jurisdiction  of  the  French  Council  of  State  in  suits  against 
the  state  arising  out  of  the  administration  of  the  public  service,  it 
was  held  that  the  responsibility  of  the  state  for  injuries  caused  to 
individuals  by  acts  of  persons  whom  it  employs  in  the  public  service 
cannot  be  governed  by  the  principles  established  by  the  civil  code 
for  the  relations  of  individual  to  individual;  that  this  responsibility 
is  neither  absolute  nor  general;  and  that  it  has  special  rules  which 
vary  according  to  the  needs  of  the  service  and  the  necessity  of  recon- 
ciling the  rights  of  the  state  with  private  rights.^  From  this  decision 
the  equitable  nature  of  the  decisions  of  the  Council  of  State  will  be- 
come apparent,  each  defective  act  of  administration  being  judged 
on  its  merits. 

Some  of  the  services  in  which  the  state  has  been  held  responsible 
on  the  theory  that  there  has  been  a  defective  operation  of  an  act  of 
public  gestion  or  service  have  been  torts  of  treasury  officers  on  the  verifi- 

'  Grivell6,  De  la  distinction  des  actes  d'autorit^  et  des  actes  de  gestion,  Paris,  1901; 
Hauriou,  La  gestion  administrative,  Paris,  1899;  Le  Roux,  op.  cii.,  102.  Duguit  in  29 
Pol.  Sc.  Quar.,  402-403  minimizes  the  distinction. 

2  Tribunal  of  Conflicts,  8  Feb.  1873,  DaUoz,  73,  3.  20;  Sirey,  73.  2.  153.  The 
Council  of  State  may  pass  likewise  upon  the  liability  to  individuals  of  departments, 
communes,  etc.,  according  to  the  Feutry  decision  in  1908.  Duguit  in  29  Pol.  Sc 
Quar.,  401. 


DIFFERENT   CLASSES   OF   ADMINISTRATIVE   ACTS  137 

cation  of  bonds,  injuries  caused  to  a  private  display  at  a  state  exposition, 
damages  caused  by  soldiers  or  by  army  horses  in  actual  commanded  serv- 
ices, i.  e.,  under  orders  of  an  officer,  accidents  caused  to  workmen  in  gov- 
ernment arsenals,  injuries  to  private  property  in  target  practice,  loss  of 
documents  confided  to  public  authorities,  damages  by  collision  be- 
tween public  and  private  vessels,  damages  caused  to  vessels  by  negli- 
gent acts  of  port  officers,  and  other  cases.  ^  By  statute,  damages  are 
granted  to  individuals  prejudiced  by  the  defective  operation  or  in- 
jurious results  of  various  public  services.  So,  for  example,  a  limited 
compensation  is  granted  for  losses  in  the  postal  service;  for  erroneous 
tax  and  customs  collections;  for  temporary  occupation  of  property 
in  carrying  on  public  works  or  in  erecting  public  buildings;  for  military 
requisitions;  for  property  taken  for  defense  in  war  times  prior  to  actual 
belligerent  engagements;  and  in  many  similar  cases  which  may  be 
assimilated  to  quasi-expropriation.- 

In  Germany,  the  activity  of  the  fiskus,  for  which  liability  is  admitted 
in  principle,  includes  what  the  French  designate  as  acts  of  gestion, 
both  public  and  private.  The  German  state  is  liable  as  a  fiskus  in 
its  character  as  the  owner  of  real  property,  of  public  works,  domains, 
forests,  roads,  and  provision  magazines;  when  it  emits  loans  or  de- 
rives money  from  various  sources  of  revenue  notably  commerce  in 
tobacco  or  salt,  or  establishes  a  lottery,  operates  a  railroad  or  a  tele- 
graph service  (though  here  the  officer  rather  than  the  state  is  made 
liable),  or  when  through  its  officers  it  enters  into  contracts  or  other 
acts  necessary  to  the  administration  or  development  of  these  various 
undertakings.  In  Germany,  Austria  and  Switzerland  the  private 
law  of  obUgations,  including  contractual  and  non-contractual  liability, 

1  Teissier,  op.  cit.,  153  et  seq.;  Michoud  in  4  Rev.  Dr.  Pub.  (1895),  6;  Le  Roux,  op. 
cit.,  102;  Sourdat,  A.,  Traite  general  de  la  responsabilite,  6th  ed.,  Paris,  1911,  p.  393 
et  seq.;  Roger,  L.,  De  la  responsabilite  civile  de  I'Etat,  Paris,  1900,  p.  48;  Duguit, 
Leon,  De  la  situation  des  particuliers  a  I'egard  des  services  publics,  24  Rev.  Dr. 
Pub.  (1907),  411-439. 

-  The  Act  of  May  3,  1841  governing  expropriation  for  public  use  (art.  48)  has  been 
amended  by  art.  2  of  the  law  of  April  21,  1914,  confining  the  compensation  to  the 
actual  and  certain  damages  caused  by  the  eviction.  A  discussion  of  the  liability 
of  France  for  injuries  inflicted  in  war  operations  is  contained  in  VauLx,  H.  de,  La 
responsabilite  de  I'^tat  frangais  a  raison  des  dommages  causes  par  les  faits  de  guerre, 
Verdun,  1913. 


138  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

is  applied  to  the  state  to  a  much  greater  extent  than  in  France,  although, 
as  a  matter  of  fact,  while  the  French  administrative  courts  firmly 
deny  the  applicability  of  the  principles  of  the  civil  code,  the  doctrines 
of  liability  of  private  law  are  nevertheless  generally  applied. 

§  55.  Respective  Liability  of  State  and  Officer. 

One  of  the  most  important  consequences  in  France  of  the  division 
between  acts  of  private  and  public  gestion  concerns  the  respective 
liability  of  the  state  and  the  officer.  In  the  former  case,  private  gestion, 
the  state  is  responsible  for  all  the  faults  of  its  employees  within  the 
scope  of  their  authority  according  to  section  1384  of  the  civil  code. 
In  the  latter  case,  gestion  of  the  public  service,  on  the  contrary,  the 
state  is  only  liable  for  such  defects  in  the  service  as  are  not  due  to  the 
grave  fault  or  personal  malice  of  the  administrative  officer.  In  other 
words,  the  courts  distinguish  between  a  fault  of  the  service  and  a  per- 
sonal fault.  The  first  may  be  the  result  of  an  administrative  act  badly 
or  imprudently  executed,  or  of  an  order  carelessly  given  or  understood ; 
the  second  consists  of  gross  faults,  torts  or  malfeasance  in  which  the 
personal  passions  of  the  officer  predominate  over  the  defect  in  the 
service.  For  these  personal  acts,  the  officer  alone  is  liable  before  the 
judicial  tribunals,  without  any  liability  of  the  state;  but  the  adminis- 
trative courts,  in  order  to  prevent  an  individual  recourse  against  an 
officer  from  bringing  into  question  an  act  of  administration,  thereby 
infringing  the  time-honored  principle  of  the  freedom  of  the  adminis- 
tration from  interference  by  the  courts,  have  reserved  the  right  to 
determine  by  preliminary  inquiry  whether  the  wrongful  act  in  question 
was  an  official  administrative  or  a  personal  fault.  ^     In  England  and 

'  Further  details  must  be  omitted.  As  to  the  French  administrative  jurisdiction 
see  Goodnow,  op.  cit.,  II,  217  et  seq.,  and  as  to  the  Tribunal  of  Conflicts,  Goodnow,  II, 
257.  See  also  Dicey,  A.  V.,  Law  of  the  constitution,  7th  ed.,  London,  1908,  ch.  XII 
particularly  p.  395.  Some  of  the  misconceptions  of  Dicey 's  view  of  the  French  sys- 
tem are  pointed  out  in  Edmund  M.  Parker's  criticism  of  the  6th  ed.  in  his  article 
State  and  official  liabiUty,  19  Harv.  L.  R.  (1905),  335-349  and  of  the  7th  od.  in  3 
Amer.  Pol.  Sc.  Rev.  (1909),  362-370.  See  also  LaferriSre,  op.  cit.,  II,  189.  It  is  often 
exceedingly  difficult  to  distinguish  the  excess  of  power  (for  which  an  appeal  for  annul- 
ment will  lie)  from  the  defect  of  service  (for  which  an  action  lies  against  the  state) 
and  from  the  personal  fault  (for  which  an  action  lies  against  the  officer).  It  seems 
that  the  action  for  annuhnent  and  against  the  officer  for  damages  may  be  brought  for 


LIMITATIONS  ON  STATE  LIABILITY  FOR  ADMINISTRATIVE  ACTS         139 

the  United  States,  personal  liability  of  officers  is  much  greater,  for  not 
merely  the  malicious  exercise  or  abuse  of  power,  but  all  excess  of  au- 
thority, use  of  excessive  force,  invasion  of  private  right  by  mistake  of 
his  authority  or  of  the  law  or  in  the  existence  of  certain  facts  upon 
which  his  action  depends,  or  even,  in  this  country,  an  act  under  ap- 
parently lawful  authority  but  resting  upon  an  unconstitutional  statute- 
all  these  are  considered  personal  acts  of  the  officer  which  render  him 
liable.^ 

A  principle  which  long  prevailed  in  French  law,  and  has  its  counter- 
part in  the  law  of  most  of  the  continental  countries,  provided  that  the 
officer  cannot  be  sued  without  the  preliminary  consent  or  authorization 
of  the  higher  administrative  courts.  This  was  an  inheritance  from  the 
Roman  law,  and  was  intended  not  merely  to  prevent  invasions  of  the 
administrative  competence  by  the  judicial  tribunals,  but  also  to 
protect  the  officer  from  unjust  suits.  This  preliminary  administrative 
decision  was  provided  for  by  art.  75  of  the  Constitution  of  the  year  VIII, 
but  it  has  been  repealed  in  France  by  the  decree  of  Sept.  19,  1870, 
which  instead  penalizes  the  institution  of  any  vexatious  or  unjustified 
suit  against  an  officer.^ 

§  56.  Limitations  on  State  Liability  for  Administrative  Acts. 

The  distinction  between  acts  of  police  and  acts  of  gestion  of  the 
pubUc  service  has,  by  recent  decisions  of  the  German  and  French 
administrative  courts,  become  vague,  partly  because  cities  have  been 
held  to  a  considerable  responsibility  for  the  maladministration  of 
police  functions  and  partly  because  certain  acts  of  police  formerly 
involving  an  immunity  from  responsibility  have  lately  been  held  to 
give  rise  to  a  right  of  action.^ 

the  same  act.  See  LaferriSre,  I,  646.  See  an  interesting  thesis  by  Jean  Depaule, 
Etude  historique  sur  la  responsabilit6  des  fontionnaires  pubUcs,  Carcassonne,  1902, 
especially  pp.  107,  189. 

'  Ernst  Freund  in  article  Private  claims  against  the  state,  8  Pol.  Sc.  Quar.  (1893), 
646.  The  tendency  now  is  to  relieve  the  officer  from  pecuniary  liability  for  acting 
under  a  statute  later  held  unconstitutional.  As  to  the  distinction,  in  EngUsh  law, 
between  misfeasance  and  non-feasance  in  the  liability  of  public  authorities,  see  W. 
Harrison  Moore  in  30  Law  Quar.  Rev.  (1914),  276-291;  415-432. 

^  Goodnow,  op.  cit.,  II,  171  et  seq.;  Laferridre,  op.  cit.,  I,  ch.  VII,  637  et  seq. 

'  The  decisions  of  the  Council  of  State  since  1903,  which  indicate  the  new  trend 


140  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

There  is  no  longer  any  safe  criterion  for  establishing  the  non- 
responsibility  arising  out  of  acts  of  police.  While  practically  every 
administrative  act  may  give  rise  to  the  responsibility  of  the  state, 
there  are  nevertheless  numerous  Umitations  on  any  potential  liability. 
First,  acts  which  are  non-contractual  and  regular  in  form  can  give 
rise  neither  to  an  action  for  annulment  nor  indemnity,  in  the  absence 
of  statute.  Similarly,  those  which  may  be  judicially  corrected  by 
annulment  for  excess  or  wrongful  use  of  power  or  illegality  or  irregu- 
larity give  rise  merely  to  administrative  appeal.  General  administra- 
tive acts  give  rise  to  an  action  for  indemnity  only  when  they  are  di- 
rected against  particular  individuals  and  then  only  when  the  illegal- 
ity cannot  be  cured  by  an  action  for  annulment  and  when  the  illegal 
execution  of  the  act  has  violated  the  legal  right  of  the  individual.^ 
Again,  the  fault  which  would  render  the  state  liable  must  be  strictly 
a  defect  in  the  service  and  not  be  due  to  a  personal  fault  of  the  officer. 
Similarly,  the  state  is  relieved  from  liability  by  force  majeure,  or  where 
the  injur}'^  is  caused  by  the  negligence  of  the  victim,  or  by  a  third  per- 
son, or  where  the  state,  as  is  frequently  the  case,  exonerates  itself  by 
express  legislative  provision,  e.  g.,  for  the  destruction  of  infected  animals, 
for  quarantine,  etc.^  In  general,  the  lawful  operation  of  a  pubUc  serv- 
ice, even  though  it  causes  injury,  renders  the  state  immune  from  re- 
sponsibility except  where  especially  undertaken  by  statute.  More- 
over, the  damage  must  be  direct  and  not  remote;  it  must  be  material; 
it  must  be  certain  and  not  merely  probable;  and  it  must  be  present 
and  actual  and  not  merely  future.^ 

§  57.  Liability  of  Municipalities. 

The  theory  of  responsibility  in  the  continental  countries  is  practi- 
cally the  same  in  the  case  of  all  governmental  bodies,  the  state,  city, 
commune  or  district.  It  is  based  upon  the  theory  of  the  juristic  person. 
In  France,  some  slight  differences  are  to  be  noted  in  the  responsibility 

of  the  law  are  i)rpsented  chronologically  by  Sourdois,  op.  cit.,  50  et  seq.  Teissier,  as 
one  of  the  judges  of  the  Council  of  State,  has  had  an  important  influence  in  shaping 
the  law.    See  also  Duguit  in  29  Pol.  So.  Quar.,  402-403. 

'  Teissier,  op.  cit.,  ch.  Ill,  §  2. 

2  Ifnd.,  ch.  Ill,  §  3. 

*  Ibid.,  ch.  IV. 


LIABILITY    OF   MUNICIPALITIES  141 

of  the  state  and  of  the  commune.  While  admitting  the  distinction 
between  acts  of  police  and  acts  of  gestion,  the  commune  is  in  far  greater 
degree  subject  to  private  law  than  the  state.  For  example,  acts  of 
public  gestion  are,  like  those  of  private  gestion,  subject  to  private  law 
rules.  Again,  the  commune  is  not,  Uke  the  state,  relieved  from  liability 
because  of  the  personal  fault  of  an  officer,  but  incurs  a  subsidiary 
liabiHty.^  In  Anglo-American  law,  the  municipality  is  subject  to  rules 
quite  different  from  those  governing  the  state  and  other  governmental 
bodies,  inasmuch  as  it  is  liable  for  corporate  acts,  but  not  for  govern- 
mental acts  (in  close  analogy  to  the  European  system),  whereas  the 
state  on  principle  escapes  responsibility  for  all  acts  and  has  admitted 
liabiUty  for  httle  more  than  contractual  obligations.  The  decentrahzed 
system  of  administration  in  Anglo-American  law,  by  which  local  bodies 
may  be  freely  sued,  combined  with  a  theoretical  plenitude  of  Uabihty 
on  the  part  of  officers  may  in  some  degree  explain  the  non-liability 
of  the  state,  whereas  the  centralized  system  of  European  adminis- 
tration demands  a  greater  centralized  hability.  Communes  in  France, 
are,  like  the  state,  liable  for  all  direct  and  personal  damages  occurring 
in  the  execution  of  public  works,  whether  due  to  fault  or  not,  a  rule 
differing  widely  from  the  Anglo-American  practice. 

The  provision  of  the  French  law  of  10  Vendemiaire  an  IV,  incor- 
porated with  modifications  in  articles  106  to  109  of  the  law  of  April  5, 
1884,  according  to  which  communes  are  responsible  for  injuries  to 
the  person  or  property  of  private  individuals  due  to  mob  violence, 
has  been  adopted  in  the  law  of  many  of  the  civilized  countries.  It 
prevails  in  many  of  the  states  of  Germany,  in  Austria,  in  Belgium  and 
in  several  states  of  the  United  States.  In  France,  the  commune  is 
relieved  from  liability  if  it  can  prove  that  all  possible  precautions 
were  taken  to  prevent  the  assembling  of  the  mob  and  to  make  its  author 
known,  or  when  the  municipality  had  no  local  police  or  armed  force. ^ 

^  Peeters,  Traite  general  de  la  responsabilit6  des  communes,  Paris,  1888;  Sourdat, 
oj).  cit.,  6th  ed.  II,  440-452;  Michoud,  L.,  De  la  respon8abilit(5  des  communes  a  raison 
des  fautes  de  leurs  agents,  7  Rev.  Dr.  Pub.  (1897),  41-84;  Valerius,  A.,  Organisation, 
attribution  et  responsabilite  des  communes,  Paris,  1912,  v.  3. 

^  Sourdat,  op.  cit..  II,  453-479;  Degroote,  Henri,  De  la  responsabilite  de  I'Etat  et 
des  communes  a  raison  des  dommages  occasionnes  par  les  emeutes,  Paris,  1906; 
Poissonier,  Paul,  De  la  responsabilite  le  I'Etat  et  des  communes  4  raison  des  dom- 


142  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

A  recent  law  of  April  16,  1914  amends  articles  106-109  of  the  law  of 
1884  by  making  the  state  share  responsibility  with  the  commune, 
the  proportion  depending  upon  the  degree  of  fault  of  the  officers  of 
the  state.  The  theory  of  fault  is  superimposed  on  the  theory  of  risk 
in  the  incidence  of  hability.  The  law  of  1884,  however,  is  still  appUca- 
ble  to  the  city  of  Paris.  ^ 

§  53.  Resume. 

To  summarize  the  French  system:  Administrative  acts  are  divided 
into  acts  of  police  and  acts  of  gestion.  Acts  of  police  if  illegal  or  in 
excess  of  jurisdiction  may  be  annulled  for  excess  of  powers,  but  in 
theory,  at  least,  no  action  lies  against  the  state  for  damages.  But  if 
in  violation  of  contract,  the  state  is  liable.  Acts  of  gestion  are  either 
private  or  public.  The  former  involve  the  liability  of  the  state  as 
a  private  person.  The  latter,  public  gestion,  embrace  acts  in  adminis- 
tration of  the  public  service.  The  state  is  usually  held  responsible 
for  defective  and  injurious  acts  of  this  kind,  unless  the  fault  of  the 
administrative  officer  is  so  purely  personal  to  himself  and  not  incidental 
to  the  public  service  that  the  state  is  relieved  from  and  the  officer 
alone  charged  with  liability.  Principles  of  pubUc  rather  than  private 
law  are  applied  to  determine  state  liabiUty.  The  recent  tendency  is 
to  narrow  the  sphere  of  acts  of  police  by  widening  the  scope  of  acts 
of  public  gestion,  and  consequently  to  enlarge  the  responsibility  of 
the  state. 

THE   GERMAN   SYSTEM 

§  59.  Judicial  Control  over  Acts  of  Administration. 

The  German  administrative  system  in  the  matter  of  judicial  control 
over  the  acts  of  the  administration  in  protection  of  private  rights  is 
very  similar  to  the  French.  The  administration  acting  as  a  public 
power  is  practically  free  from  judicial  control  except  in  so  far  as  liabil- 
ity of  the  state  for  wrongful  acts  of  its  officers  has  been  assumed  by 
the  imperial  act  of  1910  and  certain  statutes  in  the  states  of  the  Em- 
pire.   In  addition,  in  a  few  cases  the  law  has  given  the  ordinary  courts 

mages  occaeion^a  par  lea  erneutes,  Paris,  1912;  Beaudouin,  M.,  De  la  reaponsabiiit^ 
des  comraunea  et  de  I'Etat  en  cas  de  troubles  ou  d'emeutea,  Paris,  1912. 
131  Rev.  Dr.  Pub.  (1914),  445-448. 


PECUNIARY  LIABILITY   OF  THE   STATE  143 

a  limited  control  over  certain  acts  of  the  administration — a  right  of 
appeal  from  decisions  of  inferior  boards,  such  as  those  of  the  police 
authorities  in  certain  cases,  allegations  of  unjust  arrest,  disputed 
amounts  of  indemnity  in  cases  of  eminent  domain,  disputed  assess- 
ments of  taxes  and  protests  against  unlawful  acts  of  police  authorities. 
While  the  control  of  the  ordinary  courts  is  somewhat  larger  than  in 
France,  still  by  far  the  greater  share  of  judicial  control  over  acts  of 
the  administration  is  given  in  the  larger  states  to  the  administrative 
courts.  Decisions  of  the  ministers,  however,  e.  g.,  in  Prussia,  are  not 
generally  subjected  to  any  administrative  jurisdiction.  The  appeal 
for  excess  of  power  or  ultra  vires  is  unknown  to  the  Prussian  system. 
There  is  no  administrative  appeal  against  general  acts  of  administra- 
tion or  ordinances.  Only  a  special  administrative  act  is  subject  to 
such  appeal,  although,  as  in  Belgium,  Denmark  and  other  countries, 
the  question  of  the  vaUdity  of  the  ordinance  may  be  considered  col- 
laterally and  the  enforcement  of  rights  under  it  refused.  Only  such 
special  acts  as  tend  to  violate  private  rights  may  be  appealed  from, 
provided  a  statute  grants  the  right  of  appeal.  The  necessity  for  stat- 
utory provision  is,  however,  dispensed  with  in  the  case  of  acts  in  ex- 
ercise of  the  police  power.  This  appeal  has  a  suspensive  effect  on  the 
administrative  act,  similar  to  the  American  remedy  of  injunction.^ 

§  60.  Pecuniary  Liability  of  the  State. 

In  the  matter  of  pecuniary  Uability  for  wrongful  acts  of  officers, 
Germany  adopts  the  well-known  distinction  between  the  activity 
of  the  state  as  a  fiskus,  the  broad  application  of  which  has  already 
been  noted,  and  its  activity  as  a  public  power.  In  the  former  case 
the  Uability  of  the  state  is  one  of  private  law  by  the  application  of 
articles  31  and  89  of  the  Civil  Code,  which  relate  to  the  liability  of 
juristic  persons.    Section  31  reads: 

*  Goodnow,  op.  cit.,  II,  243  et  seq.;  Perlmann  in  34  Zeschr.  f.  d.  privat  u.  off.  Recht. 
98;  Sarwey,  O.  von,  Das  offentliche  Recht  u.  die  Verwaltungsrechtspflege,  Tubingen, 
1880,  92,  401;  Der  Begriff  des  Rechtschutzes  im  offentlichen  Rechte  by  Karl  F.  v. 
Lemayer,  29  Ztschr.  f.  d.  privat  u.  off.  Recht  (1902),  1-228  particularly  80  et  seq. 
Prof.  Arndt  in  an  article  Haftung  fUr  polizeiUche  Eingriffe,  40  Jur.  Wochenschrift 
(Nov.  15,  1911),  921  criticizes  the  distinction  between  non-liability  for  police  inter- 
ference through  a  general  ordinance,  and  liability  for  interference  by  special  order 


144  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

"The  association  is  responsible  for  any  damage  which  ...  a  duly 
appointed  agent  may  cause  to  a  third  person  by  an  act  giving  rise  to  a 
claim  for  compensation,  provided  that  such  act  was  done  in  the  exe- 
cution of  its  or  his  ofl&cial  duties." 

and  section  89  provides  that: 

"The  provisions  of  section  31  apply  mutatis  mutandis  to  the  fiskus 
as  well  as  to  corporations,  foundations  and  institutions  under  public 
law." 

This  responsibility  of  the  fiskus  as  a  subject  of  property  and  fiscal 
rights,  involving  the  relation  of  agency  between  the  state  and  the 
employee,  must  be  founded  on  an  act  which  would  involve  the  liabil- 
ity of  the  agent  himself  and  which  is  committed  in  the  exercise  of  his 
functions  and  not  merely  on  the  occasion  of  their  exercise.  Before 
the  Civil  Code  came  into  force  in  1900,  if  the  officer  exceeded  his  powers 
or  jurisdiction  or  omitted  duties  incumbent  upon  him,  he  was  per- 
sonally liable  according  to  article  13  of  the  act  of  March  31,  1873, 
following  in  this  respect  the  Prussian  law  of  February  13,  1854.  The 
officer's  liability  for  wilful  and  negligent  acts  is  now  governed  by  sec- 
tion 839  of  the  Civil  Code  which  provides: 

"If  an  official  wilfully  or  negligently  commits  a  breach  of  official 
duty  incumbent  upon  him  as  toward  a  third  party,  he  shall  compensate 
the  third  party  for  any  damage  arising  therefrom.  If  only  negligence 
is  imputable  to  the  official,  he  may  be  held  liable  only  if  the  injured 
party  is  unable  to  obtain  compensation  elsewhere." 

The  fiabiUty  of  the  state  for  administrative  acts  as  a  public  power 
was  left  to  the  states  of  the  Empire  by  article  77  of  the  introductory 
act  of  the  Civil  Code,  which  provides: 

"The  provisions  of  State  laws  remain  unaffected  which  relate  to  the 
liability  of  the  State,  or  of  the  communes  and  other  communal  unions 
(provincial,  circuit,  and  district  unions),  for  any  damage  caused  by  their 
officials  in  the  exercise  of  the  public  authority  entrusted  to  them;  simi- 
larly the  provisions  of  the  State  laws  remain  unaffected  which  exclude 
the  right  of  an  injured  party  to  require  compensation  from  the  officer 
for  such  an  injury,  in  so  far  as  the  State  or  the  communal  union  is  liable." 

In  eleven  German  states  the  liability  of  the  state  for  the  acts  of  its 
officers  is  under  this  section  admitted  by  legislation.  In  six  states, 
Bavaria,   Wurttemberg,   Baden,    Coburg-Gotha,    Reuss    (j.    L.)    and 


PECUNIARY   LIABILITY    OF   THE   STATE  145 

since  August  1,  1909,  in  Prussia,  the  state's  liability  is  primary  and 
exclusive,  and  in  five  others,  Hesse,  Weimar,  Schwarzburg-Sonders- 
hausen,  Reuss  (a.  L.),  and  Alsace-Lorraine,  the  liability  of  the  state 
is  subsidiary.  In  Saxony,  by  customary  law,  the  liability  of  the  state 
is  recognized.  Mecklenburg  and  Anhalt  with  a  few  minor  exceptions 
have  denied  all  liability.  In  the  other  states  the  law  varies  greatly, 
but  the  principle  of  liabiUty  is  denied.^  Except  as  admitted  by  special 
statute,  there  is  no  liability  for  lawful  exercise  of  the  public  power.' 

On  May  22,  1910,  an  imperial  statute,  very  similar  to  the  Prussian 
act  of  1909,  on  the  liabiUty  of  the  state  for  the  acts  of  its  officers,  was 
enacted.  It  relates  to  the  liability  of  the  Empire  for  the  acts  of  im- 
perial officers.^  Under  the  Prussian  and  imperial  statutes,  if  the  officer 
in  the  exercise  of  the  public  power  intentionally  or  negligently  vio- 
lates his  official  duties  toward  a  third  person,  the  responsibility  of 
the  officer  provided  for  in  section  839  quoted  above  is  cast  upon  the 
state."*    In  other  words,  the  state  has  substituted  its  own  liabiUty  for 

1  Haftungdes  Staates  u.  der  Gemeinden  fiir  ihre  Beamten,  by  Otto  Gierke,  Deutsche 
Juristen-Ztg.  1909,  18-28;  Die  Haftung  des  Staates  aus  rechtswidrigen  Handlungen 
seiner  Beamten,  by  A.  Dock,  16  Archiv  f.  off.  Recht,  244-279,  particularly  257  et  seg.; 
Die  Haftung  des  Staats  fur  den  durch  seine  Organe  u.  Beamten  dritten  zugefugten 
Schaden,  by  Karl  v.  Stengel,  Hirth's  Annalen  des  deut.  Reichs,  1901,  481-508, 
561-592;  KlingelmUUer,  Die  Haftung  fur  die  Vereinorgane  nach  §  31  B.  G.  B.,  Bres- 
lau,  1900  (Heft  3  of  Leonhard's  Studien);  Hatschek,  J.,  Die  rechtliche  Stellung  des 
Fiskus  im  B.  G.  B.,  Berlin,  1899;  Extract  from  7  Verwaltungsarchiv,  424-480,  par- 
ticularly 436  et  seq.;  also  V°  Fiskus  in  Stengel's  und  Fleischmann's  Handworterbuch, 
2nd  ed.;  Otto  Mayer,  Deutsches  Verwaltungsrecht,  1st  ed.,  I,  47  et  seq.,  II,  65  et  seq.; 
Bonnard,  Roger,  De  la  responsabilite  civile  des  personnes  publiques  et  de  leurs 
agents  en  Angleterre,  aux  Etats-Unis  et  en  Allemagne,  Paris,  1914,  209-229. 

2  E.  g.,  in  case  of  expropriation  the  liability  is  admitted.  Anschiitz,  G.,  Der  Ersatz- 
anspruch  aus  Vermogensbeschadigungen  durch  rechtmassige  Handhabung  der 
Staatsgewalt,  Berlin,  1897.    Extract  from  Verwaltungsarchiv. 

'  Die  Haftung  des  Staates  fiir  Amtsdelikte  bei  Ausiibung  der  offentlichen  Gewalt 
nach  preussischem  Rechte,  by  Robert  Coester,  5  Jahrbuch  d.  off.  Rechts  (1911), 
285-331;  Gutachten  of  Gierke  in  28  Deutscher  Juristentag,  I,  102,  of  Herrnritt,  ibid. 
II,  324  and  of  Wildhagen,  ibid.  Ill,  133;  Salman,  R.,  Haftung  fur  Beamte  in  Preussen 
u.  im  Reich,  Berlin,  1911;  also  in  Jur.  Wochenschrift,  1911,  78-80;  Delius,  Hans, 
Haftpflicht  der  Beamten,  Berlin,  1909;  Koerner,  W.,  Die  Beamten-Haftpflicht  im 
Reiche  u.  in  den  Bundesstaaten,  Berlin,  1911;  Bonnard,  R.,  op.  cit.,  209  et  seq. 

*  The  laws  of  the  German  states  modify  §  839  by  reason  of  the  provisions  of  §§  77, 
78,  and  218  of  the  Introductory  Act  to  the  B.  G.  B.  Up  to  the  act  of  1910,  the  duty 
of  the  state  to  make  compensation  for  unlawful  acts  of  imperial  officers  (in  the 


146  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

that  of  the  officer  in  favor  of  an  injured  individual.  The  liability 
of  the  state  is  primary  and  excludes  that  of  the  officer,  the  state  merely 
reserving  a  subrogated  right  of  recourse  against  the  offending  officer. 
Soldiers  are  included  among  the  officers  covered  by  the  statute,  but 
the  responsibility  of  the  state  is  excluded  in  case  of  officers  who  are 
remitted  only  to  the  collection  of  fees  from  private  persons. 

The  civil  courts  have  jurisdiction,  with  the  proviso  that  the  state 
may  raise  the  jurisdictional  conflict,  in  which  case,  in  Prussia,  the  high- 
est administrative  court,  the  Oherverwaltungsgericht,  must  first  decide 
whether  there  has  been  an  excess  of  power  or  omission  of  duty  on  the 
part  of  the  officer.  In  this  respect  the  statute  is  similar  to  the  French 
system  of  judicial-administrative  control  over  administrative  acts.^ 
The  statute  applies  to  the  minor  administrative  subdivisions  of  the 
state.  If  the  individual  is  injured,  however,  by  a  police  ordinance 
the  action  can  only  be  brought  where,  after  an  administrative  appeal, 
the  ordinance  has  been  declared  illegal  or  invalid.  The  acts  do  not 
repeal  other  statutes  limiting  state  liability,  e.  g.,  in  postal  and  tele- 
graph matters,  accident  insurance,  etc. 

A  provision  of  some  importance  for  present  purposes  is  that  foreigners 
may  claim  only  if  they  prove,  by  proclamation  published  in  the  Gesetz- 
hlatt,  that  by  reciprocity,  in  treaty  or  legislation,  their  own  country 
grants  similar  rights  to  aliens.  According  to  the  statutes  of  Bavaria, 
Wurttemberg,  Baden,  the  Mecklenburgs,  both  Reusses,  Anhalt, 
Schwarzburg-Sondershausen,  Saxony,  and  Alsace-Lorraine  aliens  may 
be  denied  the  right  to  compensation  if  they  do  not  prove  that  their 
own  state  recognized  a  corresponding  liability  in  favor  of  Germans. 
In  Hesse  and  Saxe-Coburg  reciprocity  must  be  proved,  and  this  ap- 
plies to  non-nationals  of  the  state.    Moreover,  Baden,  Reuss  (j.  L.) 

exercise  of  the  public  power)  was  regulated  only  by  §  12  of  the  Land  Registry  Act, 
which  covered  the  acts  of  recording  officers,  and  by  the  laws  of  1898  and  1904  con- 
cerning the  liability  of  the  state  for  errors  in  the  administration  of  the  criminal  law. 
See  Borchard,  State  indemnity  for  errors  of  criminal  justice,  Sen,  Doc.  974,  62nd 
Cong.,  3rd  sess. 

'  A  similar  preliminary  administrative  decision  is  required  in  Bavaria,  Baden, 
Hesse  and  Alsace-Lorraine.  See  Gravenhorst,  G.,  Der  sogenannte  Konflikt  be» 
gerichtlichcr  V(!rfolgung  von  Beamten  (Abh.  aus  dem  Staats-und  Verwaltungsrecbt. 
1.5.  Heft.),  Breslau,  1908. 


SPAIN  147 

and  Saxony  require  a  primary  liability  from  the  foreign  state.  Bavaria 
and  Wurttemberg  are  satisfied  with  a  subsidiary  liability.^ 

In  accordance  with  section  839  of  the  Civil  Code  the  liability  of 
the  state  is  excluded  if  the  officer  is  only  guilty  of  negligence  and  if 
the  injured  person  may  be  compensated  in  other  ways.  The  state 
is  likewise  relieved  of  responsibility  if  the  injury  is  committed  by  a 
judge  without  a  criminal  penalty  attaching;  if  the  injured  person 
has  failed  intentionally  or  negligently  to  avoid  the  injury  by  legal 
means;  or  if  the  officer  under  section  839  was  not  himself  responsible 
for  the  act,  but  only  an  assistant. 

The  imperial  statute  contains  a  provision  analogous  to  the  peculiar 
Anglo-American  doctrine  of  "act  of  state"  {infra,  p.  174)  by  providing 
that  state  UabiUty  is  excluded  for  acts  of  officers  in  the  foreign  service 
in  so  far  as  the  chancellor  declares  them  to  have  had  a  political  or 
international  importance. 

Both  in  France  and  in  Germany  communal  officers  are  not  always 
appointed  by  the  commune  or  local  administrative  body,  but  by  the 
state;  nevertheless,  the  state  is  not  responsible  for  officers  who  do  not 
act  directly  in  its  behalf.  If  the  officer  was  appointed  in  the  service 
of  the  commune,  the  latter  is  liable.  The  statute  does  not  relate  to 
minor  public  boards,  such  as  school  boards. 

SYSTEMS   OF   OTHER   EUROPEAN   COUNTRIES 

§  61.  Spain. 

The  Spanish  system  of  judicial  control  over  the  administration  re- 
sembles closely  that  of  France.  Since  1888  the  administrative  courts 
have  had  a  very  large  control  over  administrative  acts,  and  the  Consejo 
de  Estado  sitting  in  committee  of  the  whole  acts  as  a  Tribunal  of  Con- 
flicts in  case  of  jurisdictional  doubts.  Officers  are  liable  for  personal 
faults,  as  in  France,  and  an  administrative  decision  may  be  invoked 
to  prevent  the  ordinary  courts  from  assuming  jurisdiction  over  an 
administrative  act.  The  state  is  liable  under  the  civil  code  for  official 
torts  and  breaches  of  contract  of  its  officers,  but  curiously  only  when 
the  state  acts  tortiously  through  the  agencj'^  of  a  special  officer,  and 
not  when  the  act  is  committed  by  a  regular  competent  official  of  the 
1  Dock  in  16  Archiv  f.  off.  Recht,  273. 


148  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

state.  If  the  act,  however,  is  one  which  the  state  should  by  law  per- 
form or  perform  properly,  any  omission  or  negligent  execution  of  the 
act  will  involve  its  responsibility,  although  this  liability  is  avoided  by 
proof  that  it  has  taken  all  precautions  to  prevent  the  injurious  act. 
The  state  has  a  right  of  recourse  against  the  wrongdoing  officer.  This 
system,  both  in  requiring  the  agency  of  a  special  officer  to  render  the 
state  liable  and  the  limitations  upon  state  responsibility  incurred 
through  the  act  of  a  general  officer,  in  conjunction  with  the  necessity 
for  preliminary  administrative  consent  before  an  officer  may  be  sued, 
weakens  considerably  the  recourse  of  an  individual  against  an  injurious 
administrative  act.' 

The  Act  of  April  5,  1904,  on  the  civil  responsibility  of  public  officers, 
somewhat  increased  the  remedies  of  the  individual.  It  provides  that 
public  officers  who  in  the  discharge  of  their  duties,  by  act  or  omission, 
violate  any  precept  whose  observance  has  been  claimed  from  them 
in  writing,  shall  be  compelled  to  indemnify  the  person  injured  for  the 
damage  sustained.  The  superior  hierarchy  which  expressly  approves 
the  act  or  omission,  shall  assume  responsibility,  exonerating  the  in- 
ferior officers.  Even  a  minister  may  under  this  law  be  made  responsi- 
ble before  a  committee  of  the  Senate.^ 

§  62.  Italy. 

In  Italy,  in  1865,  the  French  system  of  judicial  control  was  abolished 
and  one  similar  to  that  of  Belgium  instituted.  In  1889,  however, 
the  French  system  was  reestablished,  except  that  the  judicial  tribunals 
have  a  much  greater  jurisdiction  than  they  have  in  either  France  or 
Spain.  In  fact,  in  this  respect,  it  is  more  like  the  German  system. 
Individuals  in  Italy  have  recourse  against  administrative  decrees  or 
measures  for  excess  of  power  or  violation  of  law,  under  the  following 
limitations:  (1)  the  recourse  for  excess  of  power  will  only  be  received 
by  the  courts  if  the  administrative  decree  or  measure  attacked  has  been 
previously  appealed  to  higher  administrative  officials  and  the  appeal 
rejected;  (2)  when  the  administrative  act  concerns  matters  of  recruit- 

'  Laferrigre,  op.  cit.,  I,  27-36;  Pascaud,  op.  cit.,  in  24  Rev.  Gen.  du  Dr.  (1900),  498- 
499;  Marvin,  G.,  La  juridiction  contentiense  en  Espagne.  Rev.  Dr.  Pub.,  1906, 
650-601;  and  works  of  Caballcro  and  Gonz41ez,  supra. 

^  Santainaria  de  Peredes,  V,  Curao  de  derecho  administrative,  Madrid,  1911,  p.  116. 


ITALY  149 

iing  or  customs,  recourse  is  open  only  for  incompetence  and  excess 
of  power,  and  not  for  violation  of  law;  and  (3)  no  recourse  is  admitted 
against  measures  of  the  government  acting  as  a  political  power.  The 
discussions  as  to  what  is  included  under  political  power  correspond 
largely  to  the  French  discussions  concerning  acts  of  government.  ^ 

The  Italian  law  as  to  responsibility  of  the  state  for  acts  of  officers 
follows  closely  the  classic  distinctions  between  acts  jure  imperii  and 
acts  jure  gestionis.  In  the  latter  case  alone  is  responsibility  admitted, 
and  then  according  to  the  rules  of  the  private  law,  being  in  this  respect 
more  nearly  analogous  to  the  German  than  to  the  French  system. 
This  is  perhaps  due  to  the  fact  that  the  judicial  tribunals  are  compe- 
tent in  actions  against  the  state,  although  the  administration  may 
raise  the  conflict  if  it  believes  the  act  in  question  was  done  jure  imperii. 

Officers  are  hable  for  gross  faults,  but  prehminary  consent  of  the 
Council  of  State  must  be  obtained  before  an  action  can  be  brought 
against  them  for  acts  relating  to  their  office.  The  ordinary  rules  of 
liability  for  fault  have  been  modified  by  the  courts  with  respect  to 
officers.  For  example,  they  are  not  responsible  for  simple  errors  of 
law  "unless  they  reveal  a  complete  ignorance  of  the  elementary  rules 
of  the  profession";  nor  for  faults  committed  when  it  is  absolutely 
impossible  to  conform  to  the  law;  nor  for  acts  done  in  executing  orders 
from  a  legitimate  authority  not  having  a  character  manifestly  wrongful 
and  illegal;  nor,  finally,  for  acts  done  in  case  of  extreme  urgency  and 
for  the  public  interest.^ 

*  Laferriere,  I,  73,  citing  Bertolini,  P.,  Delle  garanzie  della  legalita  in  ordine  alia 
funzione  amministrativa,  Rome,  1890,  209. 

^  Laferriere,  I,  83-84,  citing  Bonasi,  Delia  responsabiliti  penale  e  civile  dei  min- 
istri  et  degli  ufficiali  pubblici,  Bologna,  1874,  pp.  330,  346,  349  and  Giorgi,  Teoria 
della  obbligazione,  Florence,  1882,  vol.  V,  284.  See  also  Pascaud,  op.  cil.,  24  Rev. 
Gen.  du  Dr.  (1900),  500;  Sarwey,  op.  cit.,  202.  Italy  has  an  extensive  literature  on 
this  special  subject,  second  only  to  that  of  France.  Among  the  more  important 
contributions  which  have  been  examined  are  the  following:  Giliberti-Messina,  A., 
Responsabihta  civile  dello  state  e  delle  altre  persone  giuridiche  per  fatti  ingiusti 
dei  propri  agenti,  Palermo,  1909;  Giaquinto,  A.,  La  responsabihta  degU  enti  pubbhci, 
V.  II,  teoria  speciale,  2nd  ed.,  S.  Maria,  1914;  La  responsabihta  della  pubbhca  am- 
mistrazione  in  relazione  alle  guirisdizioni  ammistrative,  by  E.  Presutti,  41  La  Legge, 
139-144,  208-216,  354-360,  389-396  and  42  La  Legge,  6-7;  DeUa  responsabiliti 
indiretta  delle  ammistrazione  pubbUche,  bj'  L.  Meucci,  21  Archiv.  giur.  341-406; 
Alcune  osservazioni  sulla  responsabilita  dello  stato  per  i  danni  cagionati  dai  pubblici 


150  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

§  62a.  Austria-Hungary. 

In  Austria,  up  to  1867,  there  was  no  administrative  court  having 
the  power  to  reform  or  annul  decisions  of  administrative  authorities 
within  their  jurisdiction,  but  in  violation  of  the  law  or  of  the  rights 
of  private  parties.  The  diets  and  their  committees  in  the  affairs  of 
the  province,  and  the  ministers  in  matters  of  the  state,  enjoyed  most 
extended  powers,  entirely  free  from  judicial  control.  But  the  law  of 
December  20,  1867,  which  separated  justice  from  the  administration, 
provided  that  individuals  injured  by  administrative  decisions  or  meas- 
ures might  have  recourse  against  the  official  or  board  before  the  High 
Court  of  Administrative  Justice,  which  was  brought  into  operation 
by  the  law  of  October  22,  1875.  For  a  violation  of  political  rights,  the 
Supreme  Court  is  competent.  Recourse  is  usually  had  for  annul- 
ment of  the  protested  act,  reformation  being  rare.  The  individual 
also  must  have  exhausted  his  appeals  to  the  highest  administrative 
authorities.  The  Supreme  Court  acts  as  a  tribunal  of  conflicts  between 
the  judicial  and  administrative  competence.^ 

There  is  no  provision  of  law  in  Austria  which  renders  the  state  liable 
for  the  acts  of  its  officers,  except  in  a  subsidiary  way  for  the  acts  of 
judges  (supra,  p.  130,  note  5).  The  constitutional  law  of  December  21, 
1867  did  hold  employees  of  the  state  responsible  for  the  observance 
of  the  laws  in  their  official  acts,  and  made  provision  for  a  subsequent 
law  defining  the  liability  of  the  state.  But  this  official  responsibility 
seems  to  be  limited  to  a  disciplinary  control,  for  inasmuch  as  no  law 
has  been  passed  carrying  the  constitutional  provision  into  effect,  the 
courts  have  been  loath  to  hold  the  state  responsible  in  damages  for 
acts  of  its  officers,  and  the  civil  liability  of  the  officer  is  exceedingly 
limited.     Numerous  statutes,  such  as  the  patent  act,  expropriation 

ufficiali,  by  O.  Scalvanti,  2  Riv.  Dir.  Pub.  (1892),  149-173;  La  responsabilita  dello 
stato  per  gli  atti  doi  suoi  funzionari,  by  A.  Bonasi,  1  Riv.  Ital.  p.  1.  so.  giur.  (1886), 
1-33,  177-190;  Delia  responsabilita  dello  stato  in  Gabba's  Questioni  di  diritto  civile, 
Turin,  1885,  p.  109.  On  the  responsibility  of  officers  see  especially  Mottola,  Doinen- 
ieo,  'IVattato  in  diritto  ammistrativo  sulla  responsabilita  degli  uffiziali  di  governo  e 
pubblici  funzionarii,  Catanzaro,  1891;  La  responsabilita  dei  pubblici  funzionarii, 
by  G.  Quaranta,  16  II  Filangieri,  273-297,  321-343,  418-443  (a  good  comparative 
study);  and  La  responsabilitsl  dei  pubblici  ufficiali,  by  S.  Scolari,  25  Nuova  Antologia, 
47.5-490. 

■  Sarwey,  op.  cit.,  203  e,t  seq.;  Lafen-i^re,  I,  60, 


AUSTRIA-HUNGARY  151 

act,  customs  act,  etc.,  provide  for  the  liability  of  the  state,  usually 
in  cases  where  the  state  is  enriched  at  the  expense  of  the  individual.^ 
Projects  for  a  law  to  render  the  state  liable  for  the  unlawful  acts  of 
its  officers  are  now  pending  in  the  Austrian  legislature. 

In  1896  (Law  XXVI)  Hungary  established  an  administrative  court 
with  jurisdiction  over  complaints  of  individuals  injured  through  the 
acts  or  decisions  of  the  administrative  authorities.  By  Law  XX  of 
1901  a  detailed  procedure  was  provided  for.  Unlawful  administrative 
measures  may  be  annulled  or  amended.  There  is  a  considerable  civil 
liability  for  unlawful  acts  both  on  the  part  of  the  officer  and  of  the 
political  subdivision  of  the  state  for  which  he  acts.  Law  VIII  of  1871 
with  respect  to  judges  and  district  attorneys.  Law  XXI  of  1886  with 
respect  to  municipal  officers,  and  Law  XXII  of  1886  with  respect  to 
communal  officers  all  provide  that  these  officials  are  civilly  responsible 
for  the  damages  which  they  cause  unlawfully  or  by  incompetence, 
intentionally  or  by  gross  negligence,  by  act  or  omission,  in  their  offi- 
cial functions,  to  the  state,  municipahty,  community  or  to  individuals, 
provided  the  damage  could  not  have  been  prevented  by  an  established 
legal  method.  The  municipalities  and  the  communes  are  subsidiarily 
liable  in  all  cases  in  which  the  injured  person  is  unable,  by  reason  of 
the  officer's  financial  incapacity,  to  obtain  damages.  The  ordinary 
courts  have  jurisdiction.  The  official  malfeasance  of  judges  renders 
the  state  liable.  The  civil  liability  of  royal  officers  is  not  precisely 
regulated  by  statute,  but  these  officers  are  hable  to  the  state,  which 
may  through  administrative  channels  collect  damages  from  the  officer. 
The  state  alone  is  liable  to  private  individuals,  but  it  can  be  sued  only 
in  the  special  cases  provided  by  statute,  either  before  the  administra- 
tive or  the  ordinary  courts. - 

1  Perlmann  in  34  Ztschr.  f.  d.  priv.  u.  off.  Recht,  109;  24  Arch.  f.  off.  Recht,  526; 
Pascaud,  op.  cit.,  24  Rev.  Gen.  du  Dr.,  501;  Randa,  Die  Schadenersatzpflicht  nach 
osterreichischem  Recht,  3rd  ed.,  Wien,  1914;  Die  angebliche  Entschadigungsklage, 
by  Dr.  Karl  v.  Schonberger,  64  Allg.  Ost.  Gerichts-Ztg.  (1913),  18.5-188,  196-200. 
Der  Rechtsschutz  der  Einzelnen  gegeniiber  den  offentlichen  Organen  in  Oesterreich, 
by  Carl  v.  Kissling,  2  Ztschr.  f.  Gesetzgebung  (1876),  225-237.  Law  of  July  12, 
1872  in  execution  of  art.  9  of  the  law  of  Dec.  21,  1867  on  the  judicial  power,  2  Ann.  de 
Leg.  Etr.  353-359. 

*  Ferdinandy,  Gejza  v.,  Staats  u.  Verwaltungsrecht  des  Konigreicha  Ungarn  (trans. 
by  H.  Schiller),  Hannover,  1909,  pp.  186,  191,  194;  Markus,  Desider,  Ungarisches 


152  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

§  63.  Switzerland. 

Switzerland,  although  attributing  a  wide  jurisdiction  to  its  law  courts, 
nevertheless  provides  a  judicial  control  over  acts  of  the  administra- 
tion by  means  of  administrative  courts.  The  Federal  Assembly  decides 
jurisdictional  conflicts.  Within  the  administrative  jurisdiction  are 
included  the  following  matters:  the  ordinary  civil  rights;  liberty  of 
conscience  and  worship;  civil  status;  burial;  liberty  of  trade  and  in- 
dustry; coinage;  weights  and  measures;  patents;  primary  instruction; 
professional  licenses  and  other  matters.  The  Federal  Council  acts 
as  an  administrative  court,  with  right  of  appeal  to  the  Federal  As- 
sembly. The  cantons  have  in  general  adopted  the  federal  adminis- 
trative system.^ 

The  Confederation  in  its  code  of  obligations  provides  for  contractual 
and  non-contractual  liability  for  acts  of  officers  representing  the  state 
as  a  fiskus.  Like  a  private  employer,  however,  the  state  is  relieved 
from  liability  for  wrongful  acts,  provided  it  shows  that  all  precautions 
were  taken  to  prevent  the  injurious  act.  For  acts  of  public  power, 
the  law  differs  in  the  Confederation  and  in  the  cantons,  the  liability 
of  the  state  being  frequently  subsidiary  to  that  of  the  officer,  and  en- 
forceable against  it  only  on  proof  of  an  unsatisfied  judgment  against 
him.  By  the  federal  law  of  Dec.  9,  1850,  officers  are  divided  into  classes. 
A  direct  liability  of  the  state  is  possible  only  for  acts  of  officers  elected 
by  the  Assembly,  and  not  of  other  officers  (arts.  42-43).  For  many 
other  officers,  all  responsibility,  direct  or  subsidiary,  is  denied,  although 
some  cantons,  as  Solothurn,  assume  such  responsibility.  The  civil 
liability  of  officers  is  also  limited;  in  fact  the  Swiss  law  rests  largely 
on  the  basis  that  the  officer  is  responsible  only  to  a  superior  adminis- 
trative body.  Even  where  civil  liability  is  admitted,  this  body  must 
first  decide  that  there  has  been  a  sufficient  private  injury.-  A  proposed 
federal  law  amending  that  of  1850  is  now  being  discussed. 

The  systems  of  state  liability  prevailing  in  the  cantons  differ  widely. 

Verwaltungsrecht,  Tubingen,   1912.     Laforriere's  account  (I,  04)  is  no  longer  ac- 
curate. 

*  Laferri^re,  I,  66. 

*  Die  Revision  ties  Bundesgesetzes  ilber  die  Verantwortlichkeit  der  eidgenossischen 
BehOrden  u.  Beamten  von  9.  Dez.  1850,  by  H.  Kaufmann  and  Carl  Ott,  31  Ztschr. 
f.  echw.  Recht  (1912),  601-784. 


BELGIUM    AND    OTHER   COUNTRIES  153 

Some,  like  Berne,  admit  liability  for  fault,  suit  being  possible  against 
state  or  officer;  Solothurn  admits  only  a  subsidiary  liability,  as  do  some 
other  cantons;  in  Fribourg,  Schaffausen  and  Thurgau,  the  state  may 
be  sued  if  the  superior  administrative  authority  refuses  to  declare  the 
officer  personally  responsible.  In  some  cantons,  as  in  Fribourg,  gross 
fault  is  necessary  before  the  state  can  be  declared  responsible,  in  exact 
contrast  to  the  French  system.  In  Vaud,  by  a  law  of  November  29, 
1904,  the  state  and  communes  assume  primary  liability  for  the  wrongful 
acts  of  officers,  reserving  a  right  of  recourse  against  the  offending 
officer.^ 

§  64.  Belgium  and  other  Countries. 

The  administrative  systems  prevailing  in  Belgium,  the  Netherlands, 
Scandinavia  and  Greece  constitute  a  different  group  from  those  just 
described.  The  Belgian  system  may  be  taken  as  the  type.  It  is  marked 
by  the  absence  of  administrative  tribunals,  the  judicial  courts  being 
competent  in  litigation  of  all  kinds.  The  separation  of  powers  between 
the  administration  and  the  courts  is  maintained  by  prohibiting  the 
courts  from  all  interference  with  the  administrative  power.  The  only 
recourse  of  the  individual  against  unlawful  administrative  acts  for 
their  annulment  is  before  the  active  administration  itself;  the  ordinary 
judicial  courts  are  incompetent  to  annul  an  illegal  act  of  police  or 
of  an  administrative  authority,  although  they  may  refuse  to  give  it 
effect.  The  recourse  for  annulment  on  account  of  excess  of  power, 
so  important  a  remedy  in  France,  is  as  unknown  to  the  Belgian  law 
as  to  the  German.  The  legality  of  administrative  acts  thus  escapes 
judicial  control,  except  in  so  far  as  their  execution  or  application  is 
demanded.^     The  regular  courts  have  jurisdiction  of  all  actions  for 

^  Pascaud,  24  Rev.  Gen.  du  Dr.,  503-504;  Ziegler,  E.,  Die  direkte  oder  sub- 
sidiare  Haftung  des  Staates  und  der  Gemeinden  fiir  Versehen  und  Vergehen  ihrer 
Beamten  und  Angestellten  in  7  Ztschr.  f.  schw.  Recht.  (n.  f.  1888),  481-562;  Vaud, 
Law  of  Nov.  29,  1904,  Ann.  de  L^g.  Etr.,  1904,  301;  Geneva,  Law  of  May  23,  1900, 
Ann.  de  L6g.  Etr.  1900,  392.  The  liability  of  officers  and  state  in  Portugal  and  Russia 
is  briefly  outlined  in  Pascaud's  article,  pp.  498  and  501. 

^  Laferriere,  I,  93.  A  recent  work  on  the  responsibility  of  the  state  in  Eg\pt dis- 
cusses in  some  detail  the  Belgian,  Italian,  and  other  systems.  Aba  El-Salam  Zohny, 
La  responsabilit^  de  I'Etat  ^gj'ptien  a  raison  de  I'exercice  de  la  puissance  pubUque, 
Paris,  1914,  2  v. 


154  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

damages  against  the  state  acting  as  a  fiskus,  whether  contractual  or 
non-contractual.  It  is  otherwise  with  acts  of  pubhc  power.  If  legal, 
or  if  affected  only  with  defect  in  form  or  administrative  irregularity, 
no  action  lies.  But  if  its  illegality  results  from  the  violation  of  individ- 
ual rights,  the  state  may  be  sued.  The  Belgian  courts  and  authors 
seem  to  agree  that  for  faults  or  personal  neghgence  of  its  officers  in 
the  exercise  of  the  pubUc  power  the  state  is  not  responsible.  Thus 
the  courts  have  held  that  the  state,  province  or  commune  is  not  civilly 
liable  for  the  illegal  acts  of  customs  agents,  for  depredations  committed 
by  troops,  or  for  accidents  to  vessels  in  ports  or  on  canals  as  the  result 
of  bad  service  by  state  officers.^  Communes  are  liable  for  damages 
done  by  mob  violence. 

Administrative  officers  are  not  liable  to  any  greater  extent  than 
judicial  officers,  i.  e.,  only  for  willfully  wrongful  intent  (dol),  fraud,  or 
gross  negligence.  Honest  mistake  reheves  the  officer  of  liability.  No 
preliminary  authorization  is  required  in  order  to  sue  officers,  as  it  is 
in  France  and  most  of  the  countries  which  have  adopted  the  French 
system  of  administration.^ 

§  66.  Roumania. 

Roumania,  in  1866,  abolished  its  Council  of  State  and,  as  in  Belgium, 
the  courts  were  given  an  administrative  jurisdiction — not,  however, 
to  annul  administrative  acts,  for  which  the  active  administration  was 
alone  competent,  but  merely  to  refuse  to  give  them  effect  if  judged 
illegal.  This  is  only  one  of  many  cases  in  which  Roumania  has  drawn 
upon  the  Belgian  system  for  its  institutions  of  public  law.     By  the 

'  Laferriere,  I,  95.  The  last  decision  is  contrary  to  the  French  law  and  it  seems 
even  to  the  Dutch  law.    14  Clunet,  245;  16  ibid.  742. 

^  Laferriere,  I,  96;  Pascaud,  24  Rev.  Gen.  du  Dr.,  504-505.  By  way  of  exception, 
the  Norwegian  courts  can  pass  on  the  legality  of  an  administrative  act.  Bellom  in 
35  Rev.  Pol.  et  Pari.  (1903),  148  citing  Ussing,  I.,  Le  contentieux  administratif  et  la 
juridiction  administrative  (trans,  by  Dareste),  Copenhagen,  1902,  p.  310.  Further, 
on  the  Belgian  law,  see  Bourquin,  Maurice,  La  protection  dcs  droits  individuels 
contre  les  abus  de  pouvoir  de  rautorit6  administrative  en  Belgique,  Bruxelles,  1912, 
p.  92  et  seq.;  Marcq,  Rene,  La  respon8abilit6  de  la  puissance  publique,  Paris,  1911,  pt. 
1,  ch.  IV;  Etudes  sur  la  responsabilit6  des  administrations  publiques,  by  C.  Beckers, 
26  Rev.  de  TAdministration  (1879),  137-168;  37  ibid.  (1890),  92-123;  De  la  respon- 
sabilitd  de  I'^tat  et  des  communes,  by  Edouard  Remy,  La  Belgique  jud.,  1895,  1410- 
1459. 


COMPARISON   OF   CONTINENTAL  SYSTEMS  155 

law  of  July  1,  1905,  Roumania  reestablished  an  administrative  court, 
by  creating  a  new  section  of  the  Court  of  Cassation  which  was  given 
power  to  pass  upon  acts  of  authority,  to  annul  them,  and  in  certain 
cases  even,  to  compel  the  administration  to  reform  them.^ 

§  66.  Comparison  of  Continental  Systems. 

Before  discussing  in  detail  the  Anglo-American  system  of  state 
responsibihty  for  administrative  acts  resulting  in  private  damage, 
we  may  briefly  summarize  the  salient  features  of  the  continental  sys- 
tems of  state  and  official  liability.  By  practically  universal  rule  the 
state  in  its  character  as  a  fiskus  or  contractor  or  in  the  exercise  of  acts 
of  gestion  is  liable  in  contract  and  in  tort  for  the  acts  of  its  officers. 
In  some  countries,  as  in  Switzerland,  the  state  is  relieved  by  proof  of 
all  necessary  precautions  to  avoid  the  injurious  act.  When  the  state 
acts  as  a  public  power  the  measure  of  UabiUty  varies  greatly  from  state 
to  state.  For  acts  of  police,  only  a  limited  liabihty  is  incurred  at  best — 
in  France  they  may  be  annulled  for  excess  of  power  or  jurisdiction, 
but  pecuniary  damages  are  rarely  awarded;  all  possibility  of  damages 
was  until  recent  years  even  denied.  In  Germany,  the  police  ordinance 
must  be  special  and  must  be  judicially  declared  illegal  before  an  action 
lies.  In  Belgium  if  judged  illegal  the  courts  may  decline  to  give  it 
effect. 

For  private  injuries  resulting  from  acts  of  administration  of  the 
public  service  the  rules  of  liabihty  differ  from  country  to  country. 
If  the  administrative  act  is  lawful,  compensation  for  injuries  requires 
a  special  statutory  enactment.  France  and  Italy  have  been  held  to 
a  large  measure  of  responsibility  for  illegal  or  defective  operation  of 
the  public  service,  this  being  limited  only  by  the  gross  personal  fault 
of  the  officer,  in  which  event  Uability  is  charged  to  the  officer  alone. 
In  Germany,  Uability  for  the  wrongful  acts  of  officers  has  been  assumed 
by  the  Empire  and  several  of  the  more  important  states.  The  liability 
is  denied  if  only  negligence  is  chargeable  to  the  officer,  and  the  injured 
person  might  have  found  relief  in  other  ways  than  by  suit  for  damages. 
The  state  has  a  right  of  recourse  against  the  officer.     In  Spain,  only 

^  Le  contentieux  des  actes  administratifs  en  Roumanie,  by  Paul  Negulesco,  27 
Rev.  Dr.  Pub.  (1910),  667-681. 


156  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

acts  of  special  officers  involve  the  responsibility  of  the  state,  but  where 
the  law  imposes  a  definite  duty  upon  the  state  it  may  be  liable  for  its 
officer's  misfeasance  or  non-feasance.  The  officer  is  Uable  for  the 
omission  of  acts,  performance  of  which  is  demanded  of  him  in  writing. 
In  Austria  liability  is  assumed  by  the  central  government  only  for 
wrongful  acts  of  judicial  officers,  a  constitutional  provision  for  general 
liability  for  acts  of  administrative  officers  never  having  been  carried 
into  effect.  In  Hungary,  as  well  as  in  Argentine,^  local  subdivisions 
of  the  government  have  assumed  a  large  measure  of  responsibility 
for  the  wrongful  acts  of  administrative  officers,  although,  as  in  some 
of  the  cantons  of  Switzerland,  liability  is  subsidiary  to  that  of  the 
officer  and  depends  upon  the  production  of  an  unsatisfied  judgment 
against  him.  The  central  government,  as  in  Austria,  is  liable  for  judi- 
cial misfeasance,  and  for  acts  of  administrative  officers,  where  provided 
for  by  statute.  In  Belgium,  the  freedom  of  the  administration  from 
judicial  control,  has  also  limited  the  liability  of  the  state,  except  where 
admitted  by  special  statute,  to  acts  of  private  gestion.  Officers,  how- 
ever, are  liable  for  gross  faults.  Finally,  the  principles  of  liability 
on  the  continent  extend  with  slight  modifications  to  all  political  sub- 
divisions of  the  state — communes,  districts,  departments,  etc.,  in  con- 
tradistinction to  the  Anglo-American  principle  which  subjects  municipal 
corporations  to  rules  quite  different  from  those  governing  the  central 
government,  state  or  federal. 

ANGLO-AMERICAN   SYSTEM 

§  67.  Judicial  Control  over  Acts  of  Administration. 

In  the  United  States  and  Great  Britain  the  judicial  control  over 
administrative  acts  is  exceedingly  great,  in  direct  contrast  to  the  rule 
prevailing  in  France  and  in  the  other  countries  having  a  similar  adminis- 
trative system.  This  control  is  exercised  in  various  ways:  first,  acts 
of  officers  done  under  color  of  office  but  not  in  accordance  with  law 
are  justiciable  in  the  ordinary  courts.  The  officer  either  abusing  his 
powers  or  acting  without  jurisdiction,  may  incur  a  civil  or  criminal 
liability,  under  limitations  to  be  discussed  hereafter.  Again,  the  orders 
of  administrative  authorities,  if  contrary  to  law,  may  be  enjoined,  or 
'  Lopez,  I^.,  Dcrccho  adni.  argentino,  Bueuos  Aires,  1902,  pp.  215  et  seq. 


SUIT   FOR   PECUNIARY   DAMAGES  157 

if  the  authorities  fail  to  carry  out  a  duty  to  individuals  which  the  law 
imposes,  mandamus  will  issue.  The  violation  of  an  administrative 
order,  again,  may  involve  a  penalty.  In  the  enforcement  of  the  penalty 
before  the  courts,  the  latter  will  pass  upon  the  legality  of  the  adminis- 
trative order.  ^  The  courts  will  not  interfere  with  the  use  of  discre- 
tionary powers  invested  in  administrative  authorities  by  the  law,  but 
only  with  their  abuse,  e.  g.,  failure  to  grant  a  hearing  or  notice,  and  sim- 
ilar violations  of  private  right.  The  remedy  before  the  harmful  act 
has  been  committed  is  generally  against  the  threatened  act  by  petition 
for  injunction,  or  if  unfair  or  illegal,  by  request  that  it  be  reviewed  and 
annulled  or  amended.  After  commission  of  the  act,  the  remedy  is  an 
action  for  damages  against  the  officer,  within  limitations  to  be  noticed, 
or  against  the  state  or  pubhc  corporation,  in  so  far  as  suit  is  permitted. 

§  68.  Suit  for  Pecuniary  Damages^ — Liability  of  Municipal  Corpora- 
tions. 

On  principle,  suits  against  the  central  government  cannot  be 
brought  in  England  or  the  United  States,  without  the  consent  of  the 
government.  This  permission  is  in  general  limited  to  suits  on  con- 
tract, and  excludes  liability  for  the  tortious  acts  of  officers.  One 
reason  for  this  immunity  lies  partly  in  the  fact  that  the  decentralized 
system  of  administration  throws  a  large  share  of  the  exercise  of  public 
powers  upon  political  subdivisions  of  the  state  and  local  bodies  and 
corporations,  which  are  held  to  a  considerable  measure  of  liability, 
analogous  in  many  respects  to  that  of  the  state  in  continental  Europe. 
In  the  United  States,  it  is  only  in  the  case  of  municipal  corporations 
that  the  distinction  of  governmental  and  private  or  corporate  functions, 
as  a  criterion  of  Uability,  has  been  adopted.  So,  for  example,  American 
cities  engaged  in  carrying  on  gas  works,  water  works,  the  ownership 
and  management  of  wharves  and  the  towing  of  vessels  for  profit, 
have  been  held  to  respond  in  damages  for  the  wrongful  acts  of  their 
officers,  agents,  or  servants,  provided  these  wrongdoers  acted  within 

'  Goodnow,  op.  cit.,  II,  144,  190  et  seq.  The  federal  courts  in  the  United  States 
have  a  very  limited  administrative  jurisdiction,  the  remedy  being  practically  limited 
to  appeal.  Goodnow,  II,  210.  See  also  T.  R.  Powell,  Administrative  exercise  of  the 
police  power,  24  Harvard  L.  R.  (1911),  268-289,  333-346,  441-459,  particularly  338, 
441  et  seq. 


158  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

the  scope  of  their  apparent  authority,  or  their  misconduct  was  ratified 
by  the  municipality.^ 

On  the  other  hand,  a  municipal  corporation  has  been  held  not 
liable  for  the  torts  of  its  fire  or  police  departments,  nor  for  those  of 
its  board  of  health  (except  in  special  cases,  by  statute)  or  of  education, 
nor  for  those  of  any  other  officers  or  agents  in  the  discharge  of  func- 
tions which  are  primarily  governmental  and  incumbent  upon  the 
state,  but  the  performance  of  which  it  has  delegated  to  the  munici- 
pality. Neglect  of  officers  in  guarding  prisoners,  or  in  caring  for 
jurymen,  or  in  keeping  jails  or  other  public  buildings  or  highways 
in  repair  will  not  subject  the  corporation  to  legal  liability.^  Injuries 
to  private  property  under  the  valid  exercise  of  the  police  power  give 
the  individual  owner  no  redress  against  city,  state  or  officer.  As  a 
matter  of  fact,  the  fine  of  distinction  between  governmental  and  cor- 
porate functions  is  often  exceedingly  vague.  Tests  which  have  been 
applied  to  determine  the  governmental  character  of  the  act  of  ad- 
ministration are:  that  the  duty  is  enjoined  upon  the  city  by  law; 
that  the  service  is  performed  for  the  general  public;  and  that  the 
city,  in  its  corporate  capacity,  receives  no  special  benefit  from  the 
act.^ 

Municipal  corporations  are  now  by  state  statute  compelled  to  as- 
sume liability  for  numerous  acts  inflicting  damage  upon  private  in- 
dividuals which  by  common  law  involve  no  responsibility.  Thus, 
damage  to  private  property  in  the  construction  of  public  works, 
damage  by  the  action  of  health  officers,  the  destruction  of  property 
by  mobs,  among  other  matters,  is  compensated  for  by  numerous 
municipal  corporations.'* 

A  distinction  is  made  in  the  United  States  between  municipal  cor- 

1  Burdick,  F.  M.,  The  law  of  torts,  2nd  ed.,  Albany,  1908,  p.  108;  Goodnow,  F.  J., 
Municipal  home  rule,  New  York,  1906,  ch.  VII,  VIII;  Dillon,  J.  F.,  Commentaries 
on  the  law  of  municipal  corporations,  Boston,  1911,  vol.  IV,  ch.  32,  §  1610  et  seq., 
Bonnard,  op.  cit.,  136  et  seq. 

2  Burdick,  op.  cit.,  42,  110;  Powell,  24  Harvard  L.  R.  441.  See  the  leading  case  of 
Hill  V.  Boston,  122  Mass.  344. 

'  See  the  well-reasoned  opinion  in  Evans  v.  City  of  Sheboygan  (Wisconsin,  1913), 
141  N.  W.  Rep.  265. 
*  Dillon,  op.  cit.,  IV,  §§  1636-1637. 


PRINCIPLE    OF   STATE    IMMUNITY    FROM    PECUNIARY   LIABILITY      159 

porations  and  what  are  known  as  quasi-corporations — townships, 
counties,  school  districts,  etc. — according  to  which  suits  in  tort, 
except  when  permitted  by  express  statute,  may  not  be  brought  against 
the  latter,  inasmuch  as  they  are  considered  agents  of  the  central 
government  for  greater  convenience  in  administration,  and  share 
the  immunity  from  liabiUty  for  tort  which  is  enjoyed  by  the  state.  ^ 

§  69.  Principle  of  State  Immunity  from  Pecuniary  Liability. 

It  has  been  observed  that  on  principle  the  central  government  in 
English  and  American  law  is  immune  from  liabihty,  except  in  the 
limited  measure  defined  by  statute.  This  principle  of  non-liability 
has  been  explained  on  various  grounds — based  on  history,  fiction, 
convenience,  and  expediency.  The  best-known  of  these  grounds  are 
that  the  King  can  do  no  wrong,  which  declaration  was  applied  to  the 
sovereign  and  state;  ^  that  the  King  cannot  issue  a  writ  to  himself; ' 
that  there  is  an  inconsistency  in  the  idea  of  supreme  executive  power 
and  subjection  to  suit;  ^  that  a  state  or  nation  would  suffer  an  indig- 
nity in  being  compelled  to  submit  to  a  judgment  and  execution;  ^ 
that  it  would  embarrass  the  state  in  the  performance  of  its  duties, 
to  subject  it  to  suit  at  the  will  of  individuals,  and  to  submit  the 
control  of  its  instruments  and  means  of  carrying  on  the  government, 
and  its  money  and  other  property,  to  judicial  tribunals;^  that  states 
should  not  be  coerced  to  pay  debts  which  for  various  reasons  they 
might  not  be  willing  or  conveniently  able  to  pay.^ 

In  view  of  this  Umited  jurisdiction  of  courts  over  suits  against  the 
state,  and  the  wide  liability  of  officers  with  the  resulting  frequency 

"  Dillon,  op.  cit.,  IV,  §  1638  et  seq.;  Burdick,  op.  cit.,  106;  Goodnow,  Comparative 
administrative  law,  II,  152. 

2  Goodnow,  op.  cit.,  II,  154;  Bonnard,  op.  cit.,  31,  75  ct  seq. 

3  U.  S.  V.  Lee,  106  U.  S.  196,  206. 

*  Gray,  J.,  in  Briggs  v.  Light  Boats,  11  Allen,  157  quoted  in  U.  S.  v.  Lee,  106  U.  S. 
206. 

'  John  Marshall  in  the  Virginia  Convention,  3  EUiott's  Debates,  quoted  in  Hans  v. 
Louisiana,  134  U.  S.  1;  also  Matthews,  J.,  In  re  Ayers,  123  U.  S.  443. 

« U.  S.  V.  Lee,  106  U.  S.  196,  206. 

'  Marshall,  C.  J.,  in  Cohens  v.  Virginia,  6  Wheat.  264,  406,  thus  suggests  the  reason 
for  the  adoption  of  the  eleventh  amendment.  See  W.  Trickett  in  41  Amer.  L.  Rev., 
364-365. 


160  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

of  suit  against  officers  as  organs  of  state  activity,  it  becomes  important 
to  determine  when  a  suit  against  an  officer  is  in  reality  a  suit  against 
the  state,  and  within  its  protective  immunity.  In  Great  Britain 
those  who  actually  are  agents  and  instruments  of  the  Crown  in  its 
governmental  activities  are  shielded  by  the  Crown  from  liability. 
The  distribution  of  governmental  functions  in  England  among  in- 
corporated local  administrative  boards  and  government  departments, 
such  as  health  boards,  commissioners  of  works,  dock  and  bridge 
trustees,  etc.,  enables  an  injured  individual  to  have  recourse  against 
the  corporation  in  cases  where  he  would  have  no  action  against 
the  Crown.  A  distinction  seems,  nevertheless,  to  be  drawn  between 
these  incorporated  bodies  in  fulfilling  public  functions  as  a  substitute 
for  private  enterprise  and  as  a  branch  of  general  governmental 
administration.  For  the  wrongful  acts  of  its  employees  in  the  former 
capacity,  the  corporation  is  liable,  but  not  in  the  latter  case.^ 

In  the  United  States  it  has  often  been  difficult  to  distinguish  a  suit 
against  an  officer  from  a  suit  against  the  state  in  the  name  of  an 
officer.  The  general  rule  now  is  that  where  the  adverse  interest  is  in 
the  state,  against  whom  alone  relief  is  asked  and  judgment  will  effect- 
ively operate,  the  action  is  against  the  state,  and,  under  the  prohibi- 
tion of  the  eleventh  amendment,  not  within  the  jurisdiction  of  the 
federal  courts.^  The  narrow  view  expressed  in  Osborn  v.  The  Bank,^  that 
a  state  is  not  sued  unless  a  party  to  the  record  has  been  definitely 
rejected.  However,  it  is  clear  that  the  mere  fact  of  being  a  state 
officer  acting  to  benefit  the  state  should  not  be  enough  to  shield  all 

'  The  English  cases  and  principles  of  law  are  discussed  in  an  admirable  article  on 
"Liability  for  acts  of  public  servants",  by  W.  Harrison  Moore  in  23  Law  Quar.  Rev. 
(1907),  12-27.  See  also  article  by  same  author,  Misfeasance  and  non-feasance  in  the 
liability  of  public  authorities,  30  Law  Quar.  Rev.  (1914),  276-291,  415-432;  Bonnard, 
op.  cit.,  54  et  seq.  See  particularly  the  following  cases:  Mersey  Docks  Trustees  v. 
Gibbs,  L.  R.  1  H.  L.  93;  Gilbert  v.  Corporation  of  Trinity  House  (1886),  17  Q.  B.  D. 
795;  Gibraltar  Sanitary  Commissioners  v.  Orfila,  15  App.  Ca.  400;  Kinloch  v.  Sec'y 
of  State  for  Jtidia  (1880),  15  Ch.  Div.  1;  Bainbridge  v.  Postmaster-General  (1906), 
1  K.  B.  178. 

^  In  re  Ayers  (1887),  123  U.  S.  443;  Fitts  v.  McGhee  (1899),  172  U.  S.  516;  Hop- 
kins V.  Clemson  College  (1910),  221  U.  S.  636.  See  the  tests  for  distinguishing  a  suit 
against  an  oflficer  from  one  against  the  state  in  Poindexter  p.  Greenhow  (1884),  114 
U.  S.  270. 

» Osborn  v.  U.  S.  Bank  (1824),  9  Wheat.  738  per  MarshaU,  C.  J. 


PRINCIPLE    OF   STATE    IMMUNITY    FROM    PECUNIARY    LIABILITY      161 

illegal  acts  under  a  doctrine  of  immunity  from  suit.  The  exact 
limits  of  the  doctrine  cannot  be  stated  in  any  broad  principle,  but 
may  be  expressed  by  a  number  of  narrow  rules,  applicable  to  special 
classes  of  cases.  For  example,  an  action  against  a  state  officer,  whose 
object  is  to  compel  a  specific  performance  of  the  state's  contract, 
is  a  suit  against  the  state.  ^  In  property  cases,  a  suit  against  an 
officer  to  obtain  possession  of  property  in  which  the  state  has  title 
and  possession,-  or  to  compel  him  to  pay  money  out  of  the  state 
treasury,^  or  to  prevent  the  state  from  using  its  own  property  *  is  a 
suit  against  the  state.  In  general,  the  performance  of  ministerial 
duties  by  a  public  officer  may  be  enforced  by  mandamus,  and  this 
is  not  regarded  as  a  suit  against  the  state.  Ofiicers  who  are  clothed 
with  some  duty  in  regard  to  the  enforcement  of  an  unconstitutional 
statute  may  be  enjoined,  and  the  suit  will  be  regarded  as  one  against 
the  state  only  where  the  officer  acts  as  a  representative  of  the  state 
without  any  connection  with  the  enforcement  of  the  statute.^ 

'  Hagood  V.  Southern  (1886),  117  U.  S.  52;  North  Carohna  v.  Temple  (1890),  134 
U.  S.  22;  Louisiana  v.  Jumel  (1882),  107  U.  S.  711;  In  re  Ayers  (1887),  123  U.  S.  443. 

2  Cunningham  v.  Macon,  etc.  (1883),  109  U.  S.  446;  Christian  v.  N.  C.  Raih-oad 
(1890),  133  U.  S.  233.  In  the  Cunningham  case.  Justice  Miller  classified  at  length 
the  cases  in  which  a  suit  against  an  officer  was  held  to  be  a  suit  against  the  state. 

» Louisiana  v.  Jumel  (1882),  107  U.  S.  711;  Smith  v.  Reeves  (1899),  178  U.S. 
436. 

*  Belknap  v.  Schild  (1895),  161  U.  S.  10. 

5  Ex  parte  Young  (1907),  209  U.  S.  123,  154;  Smyth  v.  Ames  (1898),  169  U.  S.  466; 
Prout  V.  Starr  (1903),  188  U.  S.  537;  Gunter  v.  Southern,  200  U.  S.  543,  559;  Missis- 
sippi V.  Illinois,  203  U.  S.  335,  340;  c/.  Fitts  v.  McGhee,  172  U.  S.  516;  Reagan  v. 
Trust  Co.,  154  U.  S.  362.  A  valuable  note  as  to  when  pubhc  officers  are  subject 
t-o  suit  although  they  assume  to  be  acting  for  a  state  or  the  United  States  is  appended 
to  the  report  of  the  case  of  Sanders  i'.  Saxton  (New  York,  Oct.  1905),  in  108  Amer. 
State  Rep.  826,  830-844. 

Valuable  discussions,  more  or  less  e.xhaustive,  of  the  cases  and  the  distinctions 
between  suits  against  states  and  officers  are  contained  in  a  book  by  Singewald,  Karl. 
The  doctrine  of  non-suabiUty  of  the  state  in  the  United  States,  Baltimore,  1910, 
and  in  the  following  articles:  The  eleventh  amendment  and  the  non-suability  of  the 
state,  by  A.  F.  Wintersteen,  30  Amer.  Law  Reg.  (1891),  1-15;  Suability  of  states  by 
individuals  in  the  courts  of  the  United  States,  by  Jacob  Trieber,  41  Amor.  Law  Rev. 
(1907),  84.5-869;  Suits  against  states  by  individuals  in  the  federal  courts,  by  WiUiam 
Trickett,  41  Amer.  Law  Rev.  (1907),  364-383;  The  eleventh  amendment,  by  Herbert 
S.  Hadley,  66  Cent.  Law  Jour.  (1908),  71-76.  See  also  note  in  7  Columbia  Law  Rev. 
(1907),  609-611. 


162  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

§  70.  Limited  Right  of  Action  Granted  by  Statute. 

In  connection  with  the  pecuniary  liability  of  the  state,  we  have 
already  adverted  to  the  limitation  of  responsibility  in  Anglo-American 
law.  Beginning  with  the  maxim  that  the  King  can  do  no  wrong, 
which  was  received  in  the  United  States  as  applying  to  the  state,  a 
limited  right  of  action  has  been  gradually  extended  covering  specific 
cases.  The  most  important  limitation  of  the  right  to  sue  the  Crown 
or  state  is  the  principle  that  no  action  sounding  in  tort  may  be 
brought.  This  non-responsibility  for  tort  has  been  explained  on  the 
ground  that  the  state  acts  only  through  officers  and  that  the  tortious 
act  of  the  officer  is  not  the  act  of  the  government,  which  can  neither 
commit  nor  authorize  a  wrong.  This  antiquated  plea  of  ultra  vires 
and  other  reasons  for  an  immunity  of  the  state  from  liability  for 
tort  have  long  been  abandoned  by  the  legislation,  courts  and  jurists 
of  Europe,  and  might  well,  with  consequent  enhancement  of  justice, 
be  abandoned  in  Anglo-American  law. 

In  England,  the  individual  addresses  himself  to  the  grace  of  the 
King  by  suing  out  a  Petition  of  Right  which,  when  granted,  opens 
the  right  to  suit  against  the  Crown  as  against  any  ordinary  defendant. 
By  statute,  however,  the  right  is  also  given  to  sue  various  Govern- 
ment Departments  directly.^  In  an  opinion  very  similar  to  that  of 
the  French  Tribunal  of  Conflicts  in  the  Blanco  case  in  1873  it  was 
said  by  Lord  Cottenham  in  Monckton  v.  A-G.  (1850),  2  Mac.  &  G. 
402,  412:  "The  proceeding  by  petition  of  right  exists  only  for  the 
purpose  of  reconciling  the  dignity  of  the  Crown  and  the  rights  of  the 
subject,  and  to  protect  the  latter  against  any  injury  arising  from  the 
acts  of  the  former."  The  practice  of  suit  by  petition  of  right  extends 
back  to  Edward  III,  and  perhaps  to  Magna  Charta,  but  its  present 
use  is  regulated  by  the  Petitions  of  Right  Act  1860,  23  and  24  Vict., 
c.  34.^    Originally  confined  to  suits  for  the  recovery  of  specific  prop- 

^  Robertson,  Geo.  S.,  The  law  and  practice  of  civil  proceedings  by  and  against  the 
Crown,  London,  1908,  Book  I. 

^  For  the  history  of  the  Petition  of  Right  see  Anstey,  T.  Chisholme,  Letter  to 
the  Right  Hon.  The  Lord  Cottenham  ...  as  to  the  law  and  practice  of  petition  of 
right,  London,  1845;  Clode,  Walter,  The  law  and  practice  of  petition  of  right,  Lon- 
don, 1887,  p,  6  et  seq.  See  also  W.  Harrison  Moore,  The  Crown  aa  a  corporation, 
20  Law  Quar.  Rev.  (1904),  351-362. 


LIMITED   RIGHT   OF   ACTION   GRANTED   BY   STATUTE  163 

erty,  it  may  now  be  defined  as  the  process  by  which  recovery  is  made 
from  the  Crown  of  property  of  any  kind,  including  money,  to  which 
fhe  suppliant  is  legally  or  equitably  entitled,  except  in  cases  where 
this  process  is  ousted  by  some  statutory  mode  of  recovery.^  The 
petition  lies  where  land,  goods  or  money  have  found  their  way  into 
the  possession  of  the  Crown,  and  restitution  is  asked,  or,  in  lieu 
thereof,  compensation  in  money;  or  where  the  claim  arises  out  of 
contract  or  for  goods  supplied  to  a  branch  of  the  government.^  The 
petition  must  rest  on  a  recognized  basis  of  legal  or  equitable  relief, 
and  must  not  be  addressed  to  the  mercy  or  good  nature  of  the  Sover- 
eign. If  the  petition  is  granted,  by  the  endorsement  upon  it  of  the 
fiat:  "Soit  droit  fait  aux  parties,"  the  action  proceeds  in  the  regular 
courts  having  jurisdiction  of  a  similar  action  between  subject  and 
subject.'  The  petition  has  been  held  to  lie  for  the  recovery  of  lands, 
of  incorporeal  hereditaments,  e.  g.,  rent,  of  chattels  real,  of  specific 
chattels  or  their  value,  of  money  claims  in  general  not  founded  on 
tort,  of  liquidated  sums  due  under  contracts,  of  payment  for  services 
rendered,  of  unliquidated  damages  for  breach  of  contract,  of  duties 
overpaid,  of  compensation  under  special  statutes  and  other  cases. 
Where  the  petition  presents  a  case  of  mixed  contract  and  tort,  the 
fiat  is  usually  granted  to  secure  a  decision  whether  the  claim  is  really 
founded  in  contract  or  in  tort  or  is  severable.  The  petition  will  not  lie 
where  the  claim  is  not  founded  in  law  or  equity  (as  this  term  is 
understood  in  its  technical  sense  in  English  law),  nor  where  the 
claim  sounds  in  tort,  nor  where  it  is  brought  for  infringement  of  a 
patent,^  for  pensions  to  military,  naval  or  civil  officers  of  the  Crown, 
nor  for  the  distribution  of  an  award  received  by  the  Crown  from  a 
foreign  government  for  the  benefit  of  its  subjects.^     In  this  last  re- 

'  Robertson,  op.  cit.,  331.  See  definition  of  "relief"  under  §  16  of  the  Petition  of 
Right  Act,  1860. 

2  Feather  v.  The  Queen  (1865),  6  B.  &  S.  257,  294, 

'  The  practice  is  fully  discussed  in  the  works  of  Robertson  and  Clode,  supra. 

^  This  has  been  altered  by  §  29  of  the  Patent  and  Designs  Act,  1907,  7  Ed.  VH,  29, 
by  which  the  Crown  is  made  hable  as  is  a  subject  for  patent  infringements.  The 
development  in  the  United  States  has  been  the  same;  up  to  1910,  the  United  States 
was  not  suable  for  patent  infringement. 

*  The  cases  in  support  of  this  classification  are  noted  in  Robertson,  op.  cit.,  330 
et  seq.,  and  in  Clode,  op.  cit. 


164  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

spect,  the  practice  of  France  and  the  United  States  is  in  harmony, 
and  throughout  it  will  be  seen  how  closely  in  accord  with  English 
practice  is  that  of  the  United  States.  The  various  British  colonies 
have  enacted  statutes  rendering  the  government,  under  definite  limi- 
tations, subject  to  suit — some  of  them,  Uke  Canada  (39  Vict.,  c.  27), 
adopting  a  rule  of  liability  very  similar  to  that  of  Great  Britain, 
others  granting  more  extended  rights  to  the  subject,  as,  e.  g.,  some  of 
the  provinces  of  Australia,  and  others  still,  restricting  the  right  to 
contract  claims  purely,  as,  e.  g.,  Newfoundland  (27  Vict.,  c.  8).'  There 
seems  now  to  be  Uttle  doubt  that  aliens  can  sue  as  well  as  subjects.''^ 

In  the  United  States,  where  the  power  to  pay  debts  of  the  govern- 
ment has  been  held  to  reside  in  the  legislature,  it  was  only  by  a 
gradual  process  that  a  limited  right  of  judicial  relief  against  the  state 
has  been  granted  by  statute.  The  fact  that  such  permission  to  sue 
is  a  matter  of  grace  finds  expression  in  numerous  limitations  on  the 
right  of  the  claimant,  and  in  various  privileges  granted  to  the  govern- 
ment. For  example,  the  jurisdiction  of  the  Court  of  Claims,  estab- 
lished in  1855,  even  though  extended  by  several  acts,  particularly  the 
Tucker  Act  of  March  3,  1887  (24  Stat.  L.  505),  is  limited  to  a  few 
specific  cases,  and  practically  excludes  all  right  of  action  for  tort 
injuries.  The  government,  moreover,  always  has  the  right  of  appeal, 
the  individual  in  specified  cases  only.  Where  the  claimant  prac- 
tices fraud  in  the  statement,  proof,  establishment  or  allowance  of 
his  claim,  the  whole  claim  is  forfeited.'^ 

Besides  the  legislative  relief  of  claimants  of  certain  kinds  through 
Congressional  standing  committees,  such  as  those  on  War  Claims, 
Private  Land  Claims,  and  others,  numerous  classes  of  claims  have  by 
special  statute,  such  as  the  French  Spoliations  Act,  Indian  Depredations 
Act  and  others,  or  by  general  act,  such  as  the  Tucker  Act  of  1887, 
been  referred  to  the  Court  of  Claims.^    Moreover,  under  the  Bowman 

'  The  colonial  statutes  are  set  out  in  Appendix  B  of  Clode,  op.  cit. 

^  House  Rep.  1.34,  43rd  Cong.,  2nd  sess.,  p.  193  (Lawrence's  Report  on  Law  of 
claims  against  governments,  1875);  Robertson,  op.  cil.,  364. 

'  R.  S.,  §  1086. 

*  The  history  of  the  court  of  claims  and  its  jurisdiction  is  discussed  in  an  article  by 
Judge  Richardson  in  7  Southern  Law  Rev.  (1S82),  781-811,  also  printed  in  volume  17, 
Court  of  Claims  reports,  and  reprinted  separately;  in  a  valuable  article  by  Ernst 


LIMITED    RIGHT   OF   ACTION   GRANTED    BY   STATUTE  165 

Act  of  March  3,  1883  (22  Stat.  L.  485),  Congress  or  the  head  of  an 
Executive  Department  may  refer  claims  to  the  Court  for  the  investi- 
gation and  determination  of  facts,  without  entering  final  judgment. 
Among  the  states,  many  have  established  tribunals  or  boards  to  hear 
claims  and  report  their  findings  to  the  legislature,  while  some  give 
entire  jurisdiction  over  claims  to  committees  of  the  legislature.  In 
only  a  few  states  is  there  a  constitutional  prohibition  denying  the 
suabilit}^  of  the  state.  The  measure  of  liability  assumed  by  the 
states  follows  somewhat  that  adopted  by  the  federal  government. 

Aliens  may  sue  in  the  Court  of  Claims  on  claims  within  the  juris- 
diction of  the  Court,  provided  their  own  government  permits  itself 
similarly  to  be  sued  by  citizens  of  the  United  States.  It  has  been 
judicially  determined  that  this  right  is  accorded  to  citizens  of  Prussia, 
Hanover,  Bavaria,  Switzerland,  Holland,  Spain,  Belgium,  Italy,  Great 
Britain  and  a  few  other  countries.  Inasmuch  as  practically  all  govern- 
ments permit  themselves  to  be  sued,  and  most  of  them  in  a  far  wider 
range  of  cases  than  those  within  the  jurisdiction  of  the  Court  of 
Claims,  this  provision  for  reciprocity  hardly  acts  as  a  limitation  on 
the  right  to  sue.^ 

Under  the  Tucker  Act,  which  in  certain  cases  confers  concurrent 
jurisdiction  on  the  lower  federal  courts,  the  Court  of  Claims  received 
its  widest  range  of  general  jurisdiction.  That  act  grants  the  Court 
jurisdiction  on  (1)  all  claims  founded  upon  the  Constitution  of  the 
United  States  or  any  law  of  Congress,  except  for  pensions;  (2)  upon 
any  regulation  of  an  Executive  Department;  (3)  upon  any  contract, 
express  or  implied,  with  the  Government  of  the  United  States;  or 
(4)  upon  claims  for  damages,  liquidated  or  unliquidated,  in  cases  not 

Freund,  Private  claims  against  the  state,  8  Pol.  Sc.  Quar.,  625-652;  in  two  articles  by 
C.  C.  Binnej',  Origin  and  development  of  legal  recourse  against  the  U.  S.,  57  Amer. 
Law  Reg.,  372-395  and  Element  of  tort  as  affecting  the  legal  liability  of  the  U.  S., 
20  Yale  Law  Journ.,  95-110;  in  an  article  by  Judge  Atkinson,  The  United  States 
Court  of  Claims,  46  Amer.  Law  Rev.,  227-240.  The  jurisdiction  of  the  Court  is 
exhaustively  reviewed  by  Justice  Harlan  in  U.  S.  v.  New  York,  160  U.  S.  598.  The 
provisions  relating  to  the  Court  are  now  found  in  the  Judicial  Code,  36  Stat.  L. 
1135  et  seq. 

^  R.  S.,  §  1068.  See  the  numerous  cases  in  which  judicial  determinations  have 
been  made  of  the  right  of  citizens  of  certain  foreign  countries  to  sue  in  2  Fed.  Stat. 
Ann.  65  and  Fichera  v.  U.  S.,  9  Ct.  CI.  254;  see  also  Brown  v.  U.  S.,  6  Ct.  CI.  171. 


166  THE    DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

sounding  in  tort.  The  exception  of  tort  claims  acts  as  the  greatest 
single  limitation  upon  the  jurisdiction  of  the  court,  but  it  seems  now 
to  be  fairly  certain  that  it  does  not  affect  a  claim  under  subdivisions 
(1)  and  (2),  i.  e.,  founded  on  the  Constitution,  a  law  of  Congress,  or 
Executive  regulation,  notwithstanding  its  tortious  origin.^  Congress 
may  under  the  Bowman  Act  and  by  special  statute  refer  tort  cases 
to  the  Court  of  Claims,  as  it  has,  for  example,  in  the  numerous  cases 
of  collision  between  private  vessels  and  government  vessels  which 
have  been  so  referred,^  or  may  itself  allow  tort  claims.  When  Congress 
waives  the  government's  immunity  from  suit,  the  waiver  is  strictly 
construed  and  will  in  the  absence  of  clear  evidence  of  a  contrary  in- 
tention be  held  to  waive  only  well-known  special  defenses,  e.  g.,  the 
statute  of  limitations,  and  not  such  a  general  defense  as  the  tortious 
nature  of  the  claim  or  its  origin  in  an  unauthorized  wrong  of  an  offi- 
cer.^ Congress  alone,  and  not  an  officer  of  the  United  States,  can  waive 
the  privilege  of  the  govermnent  not  to  be  sued.^ 

On  principle,  the  United  States  government  is  not  liable  for  the 
negligence,  misfeasance  or  non-feasance  of  its  officers,'^  even  though 

»  Dooley  v.  U.  S.,  182  U.  S.  222;  Basso  v.  U.  S.,  40  Ct.  CI.  202;  Christie-Street 
Commission  Co.  v.  U.  S.,  136  Fed.  326.  See  an  instructive  article  by  C.  C.  Binney, 
Elementof  tort  as  affecting  the  legal  liabihty  of  the  U.  S.,  20  Yale  Law  Journ.,  95-110. 

2  In  England,  in  such  cases,  the  government  undertakes  the  defense  of  the  naval 
officer  who  may  be  sued  for  this  tort,  and  pays  any  judgment  found  against  him. 
On  the  Continent,  regular  judicial  remedies  are  provided  in  the  ordinary  courts  or  in 
administrative  courts  for  cases  in  which  vessels  owned  by  individuals  have  suffered 
damage  by  collision  with  public  vessels.  A  federal  bill  to  permit  suit  against  the 
U.  S.  government  in  all  such  cases  has  not  yet  become  a  law;  see  Argument  in  sup- 
port of  Bill  S.  7627  (later  H.  R.  64,  Sen.  1662,  63rd  Cong.,  1st  sess.)  permitting  suits 
against  the  U.  S.  for  damages  by  vessels  owned  or  operated  by  the  U.  S. — Amend- 
ments to  admiralty  law.  Senate  Hearings,  1910,  p.  11. 

A  gratuitous  subsidiary  liabihty  is  recognized  for  certain  claims,  as,  e.  g.,  the  In- 
dian Depredation  Claims  according  to  the  Act  of  1891.  Leighton  v.  U.  S.,  161  U.  S. 
291;  Woolverton  v.  U.  S.,  29  Ct.  CI.  107;  Love  v.  U.  S.,  29  Ct.  CI.  332;  Pino  v.  U.  S., 
38  Ct.  CI.  64;  Labadie  v.  U.  S.,  32  Ct.  CI.  368. 

3  Dahlgren  v.  U.  S.,  16  Ct.  CI.  30;  U.  S.  v.  Irwin,  127  U.  S.  125;  Haskell  v.  U.  S., 
9  Ct.  CI.  410;  U.  S.  v.  Gumming,  130  U.  S.  452. 

*  Carr  v.  U.  S.,  98  U.  S.  433. 

6  German  Bank  v.  U.  S.,  148  U.  S.  573,  particularly  579;  Moffat  v.  IT.  S.,  112  U.  S. 
24;  Whiteside  v.  U.  S.,  93  U.  S.  247;  Hart  v.  U.  S.,  95  U.  S.  316;  Langford  v.  U.  S., 
101  U.  S.  341  and  numerous  other  cases.  See  also  Bark  Eliza  (opinion  of  Cushing, 
Atty.  Gen.),  7  Op.  At.  Gen.  229,  237. 


LIMITED    RIGHT   OF   ACTION   GRANTED    BY   STATUTE  167 

in  the  discharge  of  their  oflficial  duties.^  Nor  can  an  officer  by  unau- 
thorized acts  fix  any  Uability  on  the  United  States,  although  it  may 
have  been  beneficial  to  the  government  or  done  in  its  interest.-  Where 
the  government  derives  a  financial  benefit,  at  the  expense  of  an  in- 
dividual, from  the  unauthorized  act  of  an  officer,  it  usually  makes 
provision  for  the  payment  by  the  Treasury  of  any  judgment  against 
the  officer  ^  or  permits  a  suit  on  implied  contract.'^  The  remedy  for 
injuries  occasioned  by  the  negligence  or  misfeasance  or  non-feasance 
of  officers  is  by  appeal  to  Congress.^ 

While  the  phrase  "not  sounding  in  tort"  prevents  a  claimant  from 
waiving  a  tort  and  suing  ex  contractu,  even  in  a  case  where  he  could 
have  done  so  at  common  law,®  there  is  great  difficulty  in  drawing  a 
clear  line  between  claims  disallowed  on  the  ground  of  tort,  and  those 
allowed  on  implied  contract.  Some  of  the  cases  in  which  jurisdiction 
has  been  declined  on  the  ground  of  tort  are  the  following:  failure  to 
remove  the  wreck  of  a  government  vessel; '^  faulty  construction  of 
a  dam;*  failure  to  put  proper  light  on  pier;^  wrongful  diversion  of 


1  Langford  v.  U.  S.,  101  U.  S.  341;  Belknap  v.  SchUd,  161  U.  S.  10;  Morgan  v.  U.  S., 
14  WaU.  531;  HiU  v.  U.  S.,  149  U.  S.  593.    See  Story  on  Agency,  8th  ed.,  412. 

2  Filor  V.  U.  S.,  9  Wall.  45;  Gibbons  v.  U,  S.,  8  Wall.  269.  In  most  of  the  countries 
of  Europe,  as  we  have  seen,  the  government  is  Uable  for  the  wrongful  acts  of  officers 
in  the  discharge  of  their  official  duties,  and  the  government  is  nearly  always  Uable 
where  the  act  of  the  officer  has  benefited  it. 

'  The  government,  for  example,  by  statute  pays  judgments  against  customs  col- 
lectors for  excess  duties  unlawfully  levied.  See  also  Mechem,  PubUc  offices  and 
officers,  Chicago,  1890,  §  879. 

*  State  Nat.  Bank  v.  U.  S.,  24  Ct.  CI.  488;  cf.  Knote  v.  U.  S.,  95  U.  S.  149;  U.  S.  v. 
Great  Falls  Mfg.  Co.,  112  U.  S.  645;  U.  S.  v.  Bank,  96  U.  S.  30. 

In  the  case  of  Knote  v.  U.  S.  it  was  said:  "To  constitute  an  implied  contract  with 
the  U.  S.  there  must  have  been  some  consideration  moving  to  the  U.  S.;  or  they  must 
have  received  the  money,  charged  with  a  duty  to  pay  it  over;  or  the  claimant  must 
have  had  a  lawful  right  to  it  when  it  was  received,  as  in  the  case  of  money  paid  by 
mistake." 

*  German  Bank  v.  U.  S.,  148  U.  S.  573;  Dooley  v.  U.  S.,  182  U.  S.  222. 

*  McArthur  v.  U.  S.,  29  Ct.  CI.  194.  So  claim  for  property  unlawfully  taken  can- 
not be  converted  into  one  of  implied  contract  by  suing  for  the  use  of  the  property. 
Ribas  V.  U.  S.,  194  U.  S.  315. 

^  McArthur  v.  U.  S.,  29  Ct.  CI.  191. 
i-Hayward  v.  U.  S.,  30  Ct.  CI.  219. 

*  Walton  V.  U.  S.,  24  Ct.  CI.  372. 


168  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

watercourse;  ^  collision  of  government  vessel  with  a  private  vessel;  * 
wrongful  diversion  of  proceeds  of  lands  ;^  illegal  arrest  and  imprison- 
ment;^ or  taking  of  property  from  an  arrested  person  by  the  arresting 
officer;  '^  an  injury  to  an  employee  of  the  government  in  official  work;* 
seizure  of  private  vessel  by  military  forces  in  the  prosecution  of  a  war; ' 
or  compelling  a  master  to  proceed  to  sea  with  resulting  injury  to  his 
vessel.^ 

Until  the  Act  of  June  25,  1910  (36  Stat.  L.  851)  made  the  govern- 
ment liable  to  reasonable  compensation  for  the  unauthorized  use  of 
a  patent,  a  peculiar  line  of  decisions  left  much  doubt  upon  the  respon- 
sibility of  the  government  for  such  use.^  Where  the  claim  was  brought 
for  infringement,  it  was  dismissed  for  lack  of  jurisdiction  on  the  ground 
of  tort,^°  nor  could  the  officer  using  the  patent  be  used.^^  Where,  how- 
ever, instead  of  denying  the  private  right,  as  in  the  above  cases,  the 
government  recognized  the  patentee's  right,  expressly  or  by  imphcation, 
a  recovery  on  implied  contract  was  allowed.^-  The  same  criterion  has 
been  applied  generally  to  property  wrongfully  held  by  government 
officers.  If  the  government  alleges  title  in  itself,  it  is  a  tort  in  case 
title  proves  to  be  in  the  private  individual,  and  there  is  no  jurisdiction;  ^^ 
otherwise,  if  the  private  title  is  recognized. 

Some  difficulty  has  arisen  as  to  what  is  a  "taking"  of  property  for 
public  use  within  the  principle  of  constitutional  liability  for  eminent 

'  Mills  V.  U.  S.,  46  Fed.  7.38 

2  Dennis  v.  U.  S.,  2  Ct.  CI.  210. 

3  Milwaukee  v.  U.  S.,  1  Ct.  CI.  187. 
"  Spicer  v.  U.  S.,  1  Ct.  CI.  316. 

'  Mann  v.  U.  S.,  32  Ct.  CI.  580. 

«  Hayes'  case,  46  Ct.  CI.  282. 

'  Herrera  Nephews'  Case,  43  Ct.  CI.  430;  Plant  Investment  Co.  Case,  45  Ct.  CI. 
374. 

8  Morgan  v.  U.  S.,  14  Wall.  531. 

"  See  article  by  C.  C.  Binncy,  The  government's  liability  for  the  use  of  patented 
inventions,  52  Amer.  Law  Reg.  (1904),  22-53.  The  Patent  Act  of  Austria,  France, 
and  Germany  provides  that  government  is  liable  for  use  of  private  patent. 

10  Schillinger  v.  U.  S.  (1894),  155  U.  S.  163;  RusseU  v.  U.  S.  (1901),  182  U.  S.  516; 
Sullivan  cl  al  v.  U.  S.,  23  Ct.  CI.  477. 

»'  Belknap  v.  Schild  (1895),  161  U.  S.  10. 

"  U.  S.  V.  Palmer  (1888),  128  U.  S.  262;  U.  S.  v.  Berdan  Firearms  Co.  (1894),  156 
U.  S.  .552;  Bethlehem  Steel  Co.  v.  U.  S.,  42  Ct.  Cl.  365. 

»  Langford  v.  U.  S.,  101  U.  S.  341;  U.  S.  v.  Lynah,  188  U.  S.  445. 


LIMITED    RIGHT   OF   ACTION   GRANTED    BY    STATUTE  169 

domain.  Thus,  the  overflow  of  private  land  rendering  it  worthless,  in 
the  exercise  of  the  power  to  regulate  commerce  and  improve  the  navi- 
gabiUty  of  a  river,  done  under  authority  of  Congress,  was  held  a  suffi- 
cient taking  to  warrant  recovery;  ^  whereas  the  injury  to  and  destruc- 
tion of  agricultural  lands  on  the  bank  in  improving  the  navigation 
of  the  Mississippi  river  "  and  the  raising  of  the  river  level  in  improving 
navigation,  thereby  preventing  an  adjoining  owner  from  draining  his 
canals  into  the  river  ^  were  held  to  be  consequential  damages  and  not 
to  constitute  a  "taking"  of  private  property.  Even  before  the  Tucker 
Act,  a  claim  for  the  taking  of  property  under  eminent  domain  was 
held  to  arise  ex  contractu  and  not  ex  delicto.^  NegUgence  of  officers 
doing  injury  to  property  in  carrying  out  authorized  government  opera- 
tions will  not,  in  the  absence  of  a  "taking"  of  such  property,  warrant 
a  recovery.^ 

The  following  have  been  held  to  be  claims  on  implied  contract: 
impressment  of  wagon-train  or  other  private  property  by  military 
officer  in  an  emergency;  ^  misappropriation  of  gold  certificates  pre- 
sented to  proper  officer  for  redemption,  but  applied  by  him  to  make 
up  his  own  indebtedness  to  the  government;"  unlawful  e\dction  of 
a  tenant  under  lease;  ^  a  grant  by  Congress  of  moneys  as  a  gratuity.^ 
But  there  is  no  implied  contract  to  pay  for  merely  voluntary  service 
to  the  government,^"  although  there  is,  if  rendered  in  expectation  of 
compensation  and  Congress  refers  the  claim.  ^^    Nor  is  there  any  liabil- 

1  U.  S.  V.  Lynah,  188  U.  S.  445;  PumpeUy  v.  Green  Bay  Co.,  13  WaU.  166. 

2  Jackson  v.  U.  S.,  47  Ct.  CI.  579,  230  U.  S.  1  (June  16,  1913)  and  Hughes  v.  U.  S., 
230  U.  S.  24  (June  16,  1913) ;  cf.  Bedford  v.  U.  S.,  192  U.  S.  217,  225;  U.  S.  v.  Chandler- 
Dunbar  Co.,  229  U.  S.  53  (May  16,  1913). 

=>  MiUs  V.  U.  S.,  46  Fed.  738. 

<  U.  S.  V.  Great  FaUs  Mfg.  Co.,  112  U.  S.  645. 

*  12  Dec.  Comp.  of  the  Treasury,  580,  582.  Payment  of  Malambo  fire  claims  in 
Panama,  Sen.  Doc.  858,  61st  Cong.,  3rd  sess.,  pp.  2,  4. 

«  Mason  v.  U.  S.,  14  Ct.  CI.  59;  U.  S.  v.  Russel,  13  Wall.  623. 

'  State  Nat.  Bank  v.  U.  S.,  24  Ct.  CI.  488. 

8  Dunbar  v.  U.  S.,  22  Ct.  CI.  109. 

»  Mumford  v.  U.  S.,  31  Ct.  CI.  210. 

>»  Boston  V.  District  of  Columbia,  19  Ct.  CI.  31. 

"  Roberts  v.  U.  S.,  92  U.  S.  41.  In  England  and  Canada,  there  seems  little  doubt 
that  a  petition  of  right  lies  for  services  rendered;  see  cases  cited  in  Robertson,  op.  cit., 
338. 


170  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

ity  on  implied  contract  for  moneys  illegally  received  by  consuls/  nor 
for  property  captured  from  a  public  enemy,  which  had  previously 
belonged  to  a  loyal  private  citizen  and  been  unlawfully  confiscated;^ 
nor  is  there  any  implied  contract  to  make  good  the  losses  of  an  individ- 
ual from  the  wrongful  acts  of  oflficers/  except  in  the  cases  of  authorized 
appropriation  of  property  above  mentioned. 

When  the  govermnent  enters  into  a  contract  with  an  individual 
or  corporation  it  divests  itself  of  its  sovereign  character  so  far  as  con- 
cerns the  particular  transaction  and  assumes  that  of  an  ordinary  citi- 
zen.^ In  contractual  relations,  we  find  the  most  frequent  waivers 
of  the  state's  immunity  from  suit.  It  becomes  subject  to  the  rules 
of  private  law  in  the  interpretation  of  the  obligations  under  the  con- 
tract, with  the  exception  of  the  ordhiary  rules  of  agency.  The  officer 
contracting  in  the  name  of  the  government  stands  in  a  somewhat 
different  legal  relation  to  it  than  the  ordinary  agent  to  his  principal. 
So,  for  example,  while  the  private  agent  binds  the  principal  to  the 
extent  of  his  apparent  and  ostensible  authority,  every  one  dealing  with 
government  officers  is  bound  by  their  actual  authority,  and  by  every 
requirement  of  form,  even  by  the  amount  of  appropriations,  which 
may  limit  the  power  to  incur  obligations.^  Thus  it  is  clear  that  the 
unauthorized  act  of  an  officer  does  not  bind  the  government  unless 
it  is  subsequently  ratified,^  although  his  authority  may  be  implied 

»  The  Bark  Serene,  6  Op.  Atty.  Gen.  617  (Gushing). 

2  Fawcett  v.  U.  S.,  25  Gt.  GI.  178. 

^  Langford  v.  U.  S.,  101  U.  S.  341. 

<  U.  S.  V.  N.  A.  G.  Go.,  74  Fed.  145,  151;  So.  Pac.  v.  U.  S.,  28  Gt.  Gl.  77;  Gook  f. 
U.  S.,  91  U.  S.  398;  Purcell  Envelope  Go.  v.  U.  S.,  47  Gt.  GI.  1,  24.  See  the  following 
articles:  Government  contracts,  4  Amer.  Law  Rev.,  1-17;  Government  contracts, 
by  G.  F.  Garusi,  43  Amer.  Law  Rev.  (1909),  1-28,  and  161-191;  cf.  Perriquet,  E., 
Gontrats  de  I'^tat  et  travaux  publics,  2nd  ed.,  Paris,  1890;  Der  Staatals  Kontrahent, 
by  G.  Grosch,  5  Jahrbuch  des  off.  Rechts  (1911),  267-284  (emphasizing  treaty  re- 
lations), and  Navarra,  P.  G.,  Lo  stato  nei  contratti  con  persone  private,  Turin, 
1911. 

''  Pierce  v.  U.  S.,  1  Gt.  Gl.  270;  R.  S.,  §  3679;  Shipman  v.  U.  S.,  18  Gt.  Gl.  138; 
Dunwoody  v.  U.  S.,  143  U.  S.  578;  Hawkins  v.  U.  S.,  96  U.  S.  689;  Sprague  v.  U.  S., 
37  Gt.  Gl.  447;  Hume  v.  U.  S.,  132  U.  S.  406;  Neilson  v.  Lagow,  12  Howard,  98. 

•  Whiteside  v.  U.  S.,  12  Gt.  Gl.  10,  93  U.  S.  247;  Reeside  v.  U.  S.,  2  Gt.  Gl.  1,  7  Gt. 
Gl.  82;  Pierce  t^.  U.  S.,  7  Wall.  666;  Hooe  v.  U.  S.,  218  U.  S.  322,  336;  Filor  v.  U.  S., 
9  Wall.  45;  U.  S.  v.  Speed,  8  WaU.  77. 


RIGHT    TO    SUE    OFFICER.       THE    METHOD    OF    PROTECTING    OFFICER        171 

from  the  language  of  the  statute  under  which  he  acts.^  His  authority 
must  be  proved,  where  the  allegations  of  the  petition  are  traversed,^ 
although  a  contractor  may  assume  that  an  authorized  discretion  has 
been  properl}'  exercised.^  There  is  a  presumption  against  the  officer's 
incurring  any  personal  liabihty  on  account  of  a  public  contract  con- 
cluded by  him.^ 

The  obligations  of  contractors  have  occasionally  been  increased  or 
materially  altered  by  a  subsequent  general  statute.  This  has  been 
held  by  the  Court  of  Claims  not  to  involve  any  liability  on  the  part 
of  the  government,  it  being  considered  that  the  United  States  when 
sued  as  a  business  fiskus  entering  into  contracts  cannot  be  made  liable 
for  acts  of  legislation,  enacted  in  its  character  as  a  sovereign : 

"Whatever  acts  the  government  may  do,  be  they  legislative  or  exec- 
utive, so  long  as  they  be  public  and  general,  can  not  be  deemed  to  alter, 
modify,  obstruct  or  violate  the  particular  contracts  into  which  it  enters 
with  private  persons."  » 

This  is  in  marked  contrast  to  the  rule  prevaihng  in  France,  where 
liability  of  the  state  is  incurred  for  such  indirect  violation  of  the  terms 
of  government  contracts.® 

LIABILITY   OF   OFFICERS — COMPARATIVE   LAW 

§  71.  Right  to  Sue  Officer.    The  Method  of  Protecting  Officer. 

We  have  adverted  at  various  places  to  the  responsibility  of  officers 
for  their  torts.  In  many  states,  as  has  been  observed,  the  officer  is 
held  personally  responsible  for  his  tort,  e.  g.,  in  the  United  States  and 
Great  Britain,  in  Portugal,  in  Greece,  in  Zurich,  in  Brazil,  in  Argentine, 
and  in  other  countries,  the  state  itself  being  on  principle  immune  from 

'  Rives  V.  U,  S.,  28  Ct.  CI.  249. 

2  Calkins  v.  U.  S.,  1  Ct.  CI.  382. 

'  Thompson  v.  U.  S.,  9  Ct.  CI.  187. 

*  Hodgson  V.  Dexter,  1  Cranch,  345;  Parks  v.  Ross,  11  Howard,  362. 

5  Deraing  v.  U.  S.,  1  Ct.  CI.  (1865),  190;  Jones  and  Brown  v.  U.  S.,  1  Ct.  CI.  (1865), 
384;  Wilson  v.  U.  S.,  11  Ct.  CI.  (1875),  513.    See  also  supra,  p.  128,  note  3. 

^  The  injury  must,  however,  be  direct  and  material,  and  not  merely  consequential 
and  speculative.  See  article  Des  rapports  entre  les  pouvoirs  de  police  et  les  pouvoirs 
de  gestion  dans  les  situations  contractuelles  by  Henri  Ripert,  22  Rev.  Dr.  Pub.  (1905), 
1  et  seq.,  also  supra,  p.  127. 


172  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

liability.  In  these  states  no  administrative  consent  to  sue  the  officer 
is  necessary,  and  in  Belgium  and  Austria,  it  is  no  longer  required. 

In  Spain,  France,  Germany,  Italy  and  some  of  the  cantons  of  Swit- 
zerland, the  administrative  system  rests  on  the  principle  of  the  Roman 
law  that  the  officer  is  not  suable  at  the  will  of  every  person,  but  that 
he  is  responsible  to  the  superior  administrative  body  under  whose 
authority  he  acts.  These  states  have  practically  all  borrowed  the 
French  system  under  article  75  of  the  constitution  of  the  year  VIII, 
which  required  that  the  Council  of  State  give  its  consent  before  the 
officer  could  be  sued.  This  operates  not  only  as  a  protection  to  ad- 
ministrative officers  but  also  insures  the  independence  of  the  admin- 
istration. In  Germany,  however,  this  preliminary  question  is  decided 
by  a  body,  judicial  in  character  and  independent  of  the  administra- 
tion. Where  the  officer  is  suable,  the  ordinary  judicial  courts  gen- 
erally have  jurisdiction.  Some  system  of  limitation  upon  the  right 
of  suit  still  exists  in  the  countries  above  mentioned.  In  France, 
instead  of  a  preliminary  administrative  consent  to  suit,  the  plaintiff 
who  brings  a  vexatious  action  against  an  officer  is  subject  to  penalty, 
which  acts  as  a  sufficient  restriction  upon  unwarrantable  actions.  The 
administration  in  countries  possessing  the  French  system  of  adminis- 
tive  courts  may  still  raise  the  conflict  if  it  believes  that  an  act  of 
administration  will  be  called  into  question  before  the  ordinary  courts 
through  the  action  against  the  officer.^  In  various  countries  of  Latin- 
America  responsibility  is  often  thrown  upon  the  officer  in  order  to 
shield  the  state  from  liability.  The  frequent  insolvency  of  the  officer 
is  the  best  evidence  of  the  ineffective  recourse  of  an  injured  individual 
against  an  administrative  act  in  those  countries. 

Up  to  1909  and  1910,  when  Prussia  and  the  Empire  assumed  re- 
sponsibility for  the  wrongful  acts  of  officers,  the  liability  of  the  officer 

^  De  la  responsabilit6  des  fonctionnaires  publics,  by  Maurice  Bellom,  Rev.  Pol.  vt 
Pari.,  1903,  103,  pp.  148-153;  De  la  competence  des  tribunaux  judiciuiros  a  I'egani 
des  fonctionnaires  de  I'ordre  adniinistratif,  by  M.  Massonie,  20  Rev.  Gen.  du  Dr. 
(1902),  18-36;  Depaule,  J.,  op.  cit.,  49,  107,  143,  159;  Quaranta,  op.  cil.,  in  IG  II 
Filangieri,  273  ct  aeq.;  Dii;  Verwaltungsgerichtsbarkeit  in  Frankreich  und  der  Conseii 
d'Etat,  by  W.  Ilagens,  17  Archiv  f.  off.  Recht  (1902),  373-412,  at  387;  Geser,  A.. 
Zivilrechtliche  Verantwortlichkeit  der  Beamten,  Freiburg,  1899;  Dc^lius,  Haftpflichc 
der  Beamten,  Berlin,  1909;  Brand,  A.,  Das  Beamtenrecht  (in  Prussia),  Berlin,  1914, 


RIGHT    TO    SUE    OFFICER.      THE    METHOD    OF    PROTECTING    OFFICER      173 

in  Germany  was  perhaps  greater  than  in  other  countries.  In  France, 
the  hability  of  officers  before  the  courts  is  both  narrower  and  wider 
than  in  Anglo-American  law — narrower,  inasmuch  as  the  ordinary 
courts  are  not  allowed  to  decide  the  question  of  the  jurisdiction  of 
the  administration,  and  wider,  in  that  a  purely  personal  act  may 
render  him  liable  in  damages,  whether  done  in  the  performance  of  a 
ministerial  or  discretionary  duty.^ 

In  Anglo-American  law,  while  in  theory  the  liability  of  the  officer 
is  substituted  for  that  of  the  state,  in  practice  the  officer  is  so  well 
protected  that  the  remedy  is  in  many  cases  illusory.  In  England,  a 
special  act  exists  to  protect  public  officers  from  suit,  in  addition  to  the 
general  principles  of  the  law  which  will  be  noticed  presently.  The 
Public  Authorities  Protection  Act  of  1893  (56  and  57  Vict.,  c.  61) 
protects  public  officers  against  claims  which  are  ill-founded  or  stale, 
by  providing  for  suit  within  six  months.  The  act  is  intended  to  avoid 
unnecessary  litigation.^ 

Among  the  most  important  limitations  of  Anglo-American  law  upon 
the  civil  liability  of  officers  to  individuals  injured  by  their  official 
acts,  may  be  mentioned  the  following:  judicial  officers  and  those 
exercising  judicial  authority  are  immune  from  suit  even  for  malice 
or  corruption;  the  higher  executive  officers  are  equally  immune  from 
civil  liability;  inferior  administrative  boards  or  officers  exercising  dis- 
cretionary authority  can  only  be  rendered  civilly  responsible  for  their 
acts  if  dishonesty  or  malice  against  the  injured  individual  is  proved. 
Again,  officers  owing  a  duty  to  the  public  at  large  and  not  to  an 
individual  in  particular  cannot  usually  be  rendered  civilly  respon- 
sible for  their  wrongful  acts  injuring  individuals,  their  responsibility 
being  criminal  or  political  only.  Finally,  ministerial  officers  acting 
under  warrants  from  courts  or — the  tendency  is — from  superior  ad- 
ministrative authorities  having  judicial  powers  are  protected  by 
warrants  fair  on  their  face  and  emanating  from  a  body  ostensibly 
having  jurisdiction.^    While  the  act  of  an  officer  acting  under  an  un- 

'  Goodnow,  op.  cit.  II,  175. 

^  Chartres,  John,  The  Public  authorities  protection  act,  1893,  London,  1912;  12 
Encyclopedia  of  the  laws  of  England,  2nd  ed.,  81;  Bonnard,  op.  cit.,  69. 

'  Chaster,  A.  W.,  The  powers,  duties  and  liabilities  of  executive  officers,  5th  ed., 
London,  1899,  150  et  seq.;  Mechem,  op.  cit.,  §  6.56  et  scq.;  T.  R.  Powell  in  24  Harvard 


174  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

constitutional  statute  may  be  enjoined,  the  modern  tendency,  con- 
trary to  the  older  doctrine,  is  to  hold  that  such  statute  protects  the 
officer  against  an  action  for  damages.^  PubUc  officers  are  not  in 
general  civilly  liable  to  third  persons  for  the  acts  of  their  official 
subordinates.^ 

A  pecuhar  doctrine  of  Anglo-American  law — the  "act  of  state" 
doctrine — to  which  the  Supreme  Court  has  recently  given  definite 
sanction,  serves  to  relieve  officers  of  the  government,  under  certain 
circumstances,  from  liability  for  injuries  inflicted  upon  aliens  in  the 
course  of  their  official  duty.    Burdick  states  the  principle  as  follows: 

"When  an  act,  injurious  to  a  foreigner,  and  which  might  otherwise 
afford  a  ground  of  action,  is  done  by  a  British  subject,  and  the  act  is 
adopted  by  the  British  government,  it  becomes  an  act  of  the  State,  and 
the  private  right  of  action  becomes  merged  in  the  international  question 
which  arises  between  the  British  government  and  that  of  the  foreigner."  » 

These  injuries  are  usually  committed  upon  foreigners  by  naval  or 
military  officers,  or  by  representatives  of  the  government  abroad,  in 
dependencies  or  colonies.  When  the  act  has  been  adopted  by  the 
state  as  its  own  act,  it  covers  the  officer  with  the  shield  of  immunity 
possessed  by  the  state  itself.  The  court  has  jurisdiction  merely  to 
establish  the  fact  of  the  "act  of  state,"  and  in  the  event  of  an  affirma- 
tive determination,  the  act  and  those  responsible  for  it  escape  the 
jurisdiction  of  municipal  courts.^    Where  the  victim  is  the  subject  of 

L.  R.  442.  Liability  for  acts  of  public  servants,  by  W.  Harrison  Moore,  23  Law 
Quar.  Rev.  (1907),  12-27.  Liability  of  officers  acting  in  a  judicial  capacity  at  the 
common  law,  by  Arthur  Biddle,  15  Amer.  L.  Rev.  (1881),  427-448,  491-509;  Lia- 
bility of  public  officers  to  private  actions  for  neglect  of  official  duty,  by  T.  M.  Cooley, 
3  Southern  L.  R.  (1877),  531-552;  Bonnard,  op.  cit.,  97  et  seq.,  42  et  seq. 

It  is  to  be  noted  that  the  state  as  well  as  the  local  corporation  may  and  frequently 
does  indemnify  its  officers  for  hability  which  they  may  incur  in  the  discharge  of  their 
duties.    Mechem,  op.  cit.,  §  879;  Goodnow,  op.  cit.,  160. 

'  Mechem,  op.  cit.,  §  662  and  cases  cited.  See  also  Hopkins  v.  Clerason  College, 
221  II.  S.  636,  644;  Ex  parte  Young,  209  U.  S.  123. 

^  Mechem,  op.  cit.,  §  789  et  seq.  Exceptions  noted  in  §  790;  Salmond,  J.  W.,  The 
law  of  torts,  3rd  ed.,  London,  1912,  p.  55. 

'  Burdick,  op.  cit.,  37.  See  also  definition  of  James  Stephen  quoted  in  Moore,  W. 
Harrison,  Act  of  state  in  English  law,  London,  1906,  p.  93;  Pollock,  F.,  The  law  of 
torts,  8th  ed.,  London,  1908,  p.  Ill;  1  Encyc.  of  the  laws  of  England,  2nd  ed.,  p.  142. 

*The  "Act  of  State"  doctrine  by  H.  T.  Kingsbury,  4  A.  J.  I.  L.  (1910). 


FOREIGN    STATES    IN    MUNICIPAL   COURTS  175 

a  weak  state,  the  international  remedy,  which  remains  open,  is  quite 
ineffectual. 

The  highest  executive  officer  and  the  ministers  of  state  are  usually 
more  fully  protected  from  judicial  control  and  civil  liability  than 
other  officers.  Over  their  jurisdiction,  there  is  in  most  countries 
no  judicial  control,  and  over  their  personal  acts,  in  most  of  the  Euro- 
pean countries  generally  and  in  Latin- America,  such  control  depends 
upon  the  prehminary  authorization  of  the  legislature.^  In  Anglo- 
American  law,  the  highest  executive  officers  are  practically  free  from 
judicial  control.  But  inasmuch  as  they  act  generally  through  sub- 
ordinates, who  are  responsible  for  their  actions  and  are  not  protected 
by  the  fact  that  they  have  acted  on  instructions  from  superiors,  this 
immunity  from  judicial  control  is  not  so  absolute  as  it  might  seem.' 
In  most  countries,  there  is  a  large  parliamentary  and  political  respon- 
sibility, usually  fixed  in  the  Constitution,  and  a  certain  criminal 
responsibility. 

§  72.  Foreign  States  in  Municipal  Courts. 

Having  discussed  at  some  length  the  liabihty  to  suit  of  the  state 
and  its  organs  and  instruments  of  administration  in  its  national  courts, 
we  may  for  a  moment  turn  to  the  question  of  the  suabiUty  of  the 
state  before  foreign  courts.  It  is  a  general  rule  of  international  law 
that  courts  will  not  exercise  jurisdiction  over  foreign  states,  unless 
the  action  concerns  local  real  estate  or  unless  the  foreign  state  vol- 
untarily submits  to  the  jurisdiction.  The  physical  presence  of  movable 
property  of  the  foreign  state  \\'ithin  the  territory  does  not  confer 

359-372.  The  leading  cases  in  Great  Britain  have  been:  Buron  v.  Denman  (1848), 
2  Exch.  167;  Luby  v.  Wodehouse,  17  Irish  C.  L.  R.  618;  Tandy  v.  Westmoreland, 
27  State  Trials,  1246,  1264;  Poll  v.  Lord  Advocate  (1899),  1  Fraser,  823;  Musgrave  v. 
Chung  Teeong  Toy  (1891),  A.  C.  272;  in  the  United  States,  The  Paquete  Habana, 
189  U.  S.  453,  465;  O'Reilly  de  Camara  i'.  Brooke,  209  U.  S.  45,  52  (see  criticism  in 
Kingsbury's  article,  364  et  seq.);  Chuoco  Tiaco  v.  Forbes,  decided  May  5,  1913  (228 
U.  S.  549).  Justice  Holmes  decided  all  three  cases.  See  also  Wiggins  v.  U.  S.,  3  Ct. 
CI.  412. 

^  De  la  responsabilite  civile  des  ministres,  by  A.  Vacherot,  13  Rev.  Pol.  et  Pari. 
38,  pp.  251-270;  De  la  responsabilite  pecuniaire  des  ministres,  bj-  Ch.  Roussel,  7  Rev. 
Dr.  Pub.  (1897),  385-416;  Petel,  A.,  De  la  responsabihte  du  ministere  pubUc,  Paris, 
1901. 

*  Goodnow,  op.  cit.,  II,  164-166. 


176  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

jurisdiction  over  the  foreign  state.  In  the  Hellfeld  case  in  Germany 
it  was  held  that  even  though  a  foreign  state  (Russia)  sues  an  in- 
dividual and  submits  to  a  counterclaim,  no  execution  can  issue  against 
the  foreign  state,  notwithstanding  the  fact  that  it  possesses  property 
within  the  territory.  The  immunity  of  the  foreign  state  extends  to 
its  sovereign,  its  ambassadors,  and  its  public  property.  Attachment 
and  garnishment  proceedings  against  the  property  of  foreign  states 
or  sovereigns  are  almost  uniformly  dismissed.  Exceptions  to  these 
rules  have  been  made  in  some  cases  by  the  courts  of  Belgium  and 
Italy,  which  seem  to  have  adopted  the  distinction  of  administrative 
law  between  transactions  of  the  state  jure  imperii  and  jure  gestionis, 
and  to  have  exercised  jurisdiction  in  the  latter  case.^ 

'  These  questions  are  discussed  at  some  length  in  the  chapter  on  Contractual 
Claims,  infra,  §  118.  In  addition  to  the  literature  there  cited,  of  which  the  work 
by  Loening  and  the  article  by  Droop  in  26  Gruchot's  Beitrage,  289-316,  on  com- 
parative law,  are  the  most  illuminating,  see  De  Paepe,  Etude  sur  la  competence  civile 
a  regard  des  Etats  Strangers,  Bruxelles,  1894  and  F6raud-Giraud,  Etats  et  souver- 
ains,  personnel  diplomatique  et  personnes  civiles  devant  les  tribunaux  etrangers, 
Paris,  1895;  and  articles  on  the  subject  by  A.  Hartmann  in  22  R.  D.  I.  (1890),  425- 
437;  by  C.  F.  Gabba  in  15  Clunet  (1888),  180-191,  16  Clunet  (1889),  538-554  and 
17  Clunet  (1890),  27-41,  and  in  51  Giurisprudenza  itahana,  65-80;  by  Cuveher  in 
20  R.  D.  I.  (1888),  109-131;  and  by  von  Bar  in  12  Clunet  (1885),  645-657.  On  the 
Hellfeld  case  (translated  in  5  A.  J.  I.  L.,  1911,  490-519),  see  besides  the  work  by  Brie, 
Fischer  and  Fleischmann,  the  series  of  articles  by  Kohler,  Laband,  MeiU  and  Seuflfert 
in  4  Ztschr.  f.  Volkerrecht,  309  et  seq.,  summarized  by  Julius  Hirschfield  in  Journ. 
of  Comp.  Leg.,  March,  1911,  300-303,  and  the  legal  opinion  of  Conrad  Bornhak 
in  the  case,  printed  in  5  Jahrbuch  d.  off.  Rechts  (1911),  230-266.  A  severe  criticism 
of  the  exceptional  line  of  decisions  of  the  Italian  courts  on  this  question  is  contained 
in  two  articles  by  Dionisio  Anzilotti  in  5  Ztschr.  f.  int.  Priv.  u.  Strafrecht  (1895), 
24-37  and  138-147.  Clunet  makes  it  a  point  to  report  cases  involving  suits  against 
foreign  states  and  sovereigns  in  municipal  courts. 


CHAPTER  IV 
INTERNATIONAL  RESPONSIBILITY  OF  THE  STATE 

§  73.  General  Principles. 

In  preceding  chapters  we  have  examined  the  rights  of  aliens  and  the 
responsibiUty  of  the  state  and  its  officers,  in  municipal  law,  for  a 
violation  of  the  rights  of  the  alien.  We  are  now  prepared  to  examine 
the  final  phase  of  the  obligation  of  the  state  toward  the  ahen  and  its 
responsibility  for  an  infringement  of  his  rights.  This  phase  is  the 
international  liability  of  the  delinquent  state  toward  the  ahen's  home 
state.  ^ 

In  the  absence  of  an  international  legislature  or  court  of  justice 
the  standard  of  duty  of  the  state  toward  aliens  and  its  international 

1  Funck-Brentano  and  Sorel  (Precis  du  dr.  des  gens,  1877,  p.  224),  state  that  it 
was  at  one  time  asserted  by  a  certain  school  of  international  law  that  reciprocal 
responsibility  of  states  was  incompatible  with  full  sovereignty,  and  that  the  state 
was  the  judge  of  its  own  responsibility.  With  the  growth  of  international  inter- 
course, that  theory  has  long  been  abandoned. 

The  subject  of  state  responsibility  in  international  law  has  been  more  or  less  neg- 
lected by  writers,  notwithstanding  its  great  importance.  The  best  works  on  the 
theory  of  the  subject  are:  Anzilotti,  D.,  Teoria  generale  della  responsabilita  dello 
Stato  nel  diritto  internazionale,  Florence,  1902,  published  in  French,  considerably 
paraphrased,  in  13  R.  G.  D.  I.  P.  (1906),  5-29,  285-309,  and  Marinoni,  Mario,  La 
responsabihta  degli  stati  per  gU  atti  dei  loro  rappresentanti  secondi  il  diritto  inter- 
nazionale, Rome,  1914.  See  also  Benjamin,  Fritz,  Haftung  des  Staats  aus  dem 
Verschulden  seiner  Organe  nach  Volkerrecht,  Breslau,  1909  (a  Heidelberg  disserta- 
tion). The  following  works  devote  some  space  to  the  subject:  Leval,  G.,  La  protec- 
tion diplomatique,  Bruxelles,  1907,  Part  II,  p.  125  el  seq.;  Tchernoff,  T.,  Protection 
des  nationaux,  Paris,  1899,  p.  271  et  seq.;  Lisboa,  H.,  Les  reclamations  diplomatiques, 
Santiago,  1908.  The  subject  is  treated  of  briefly  in  the  following  general  works: 
Oppenheim,  I,  ch.  Ill,  206-225;  Hall,  214-220;  HaUeck,  I,  ch.  XIII;  Hershey, 
eh.  X;  Pradier-Fodere,  I,  §§  196-210;  Calvo,  §  1261  et  seq.;  Fiore,  §§  659-679;  Liszt 
§  24;  Triepel,  350;  Gestoso  y  Acosta,  I,  259-269;  Ohvart,  I,  451-462;  Seijas,  III, 
445-461  and  in  other  volumes;  Piedelievre,  I,  317-322;  Bonfils,  pt.  I,  ch.  V;  Bry, 
ch.  X  (1906  ed.),  454-461;  Funck-Brentano  and  Sorel,  1877  ed.,  ch.  XII,  224-230. 
Further  Uterature  will  be  cited  under  special  topics. 

177 


178  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

responsibility  for  violation  of  its  obligations  may  be  considered  the 
result  of  a  gradual  evolution  in  practice,  states  having  in  their  mutual 
intercourse  recognized  certain  duties  as  incumbent  upon  them.  In 
the  absence  of  a  central  authority  to  enforce  this  standard  of  duty 
upon  the  state  of  residence,  international  law  has  granted  the  home 
state  of  the  alien  who  has  suffered  by  a  delinquency  the  right  to  de- 
mand and  enforce  compensation  for  the  injuries  sustained.  The 
remedy  for  a  violation  of  international  duty  toward  aliens  lies  in  a 
resort  to  diplomatic  measures  for  the  pecuniary  reparation  of  the 
injury;  and  these  measures  may  range  from  the  diplomatic  presen- 
tation of  a  pecuniary  claim  to  war.  Self-help,  tempered  by  the  peace- 
ful instrumentalities  of  modern  times,  such  as  arbitration,  is  the  ul- 
timate sanction  of  international  obligations.  In  this  very  fact  lies 
the  difficulty  of  the  present  subject,  for  powerful  states  have  at  times 
exacted  from  weak  states  a  greater  degree  of  responsibility  than  from 
states  of  their  own  strength.  Nevertheless,  fundamental  principles 
have  in  the  course  of  time,  through  a  constant  growth  in  the  number 
of  cases  of  protection  and  of  international  claims,  become  more  clearly 
defined,  so  that  a  closer  study  of  the  subject  may  be  fruitful  of  practical 
results. 

It  has  already  been  remarked  that  international  law  imposes  upon 
states  the  duty  of  according  aliens  certain  rights  and  of  assuring  them 
of  certain  administrative  and  judicial  protection.  In  almost  every 
branch  of  international  law,  rules  are  found  which  limit  the  natural 
liberty  of  states  by  imposing  upon  them  duties  toward  aliens.  Any 
omission  in  these  duties  involves  the  responsibility  of  the  delinquent 
state  not  only  toward  the  individual  directly  (if  so  provided  by  muni- 
cipal law),  but  also  toward  his  home  state,  which  in  international 
theory  is  considered  as  injured  in  the  person  of  its  citizen.  A  state 
may  limit  its  municipal  responsibility  by  legislation,  but  not  its  in- 
ternational responsibihty,  which  it  incurs,  under  international  law, 
to  the  national  government  of  the  alien.  The  national  state  enforces 
its  own  right,  therefore,  in  presenting  an  international  claim,  although 
the  pecuniary  benefits  of  an  indemnity  may  ultimately  be  awarded 
to  the  injured  individual  himself. 

In  considering  the  international  responsibility  of  the  state  for  de- 


GENERAL   PRINCIPLES  "  179 

linquencies  toward  aliens,  it  may  be  well  to  recall  certain  funda- 
mental principles.^  An  alien  in  entering  a  country  submits  tacitly 
to  the  local  law,  according  to  the  rules  of  which  his  rights  and  duties 
are  measured.  If  the  local  rules  of  civil  and  criminal  law  are  applied 
to  him  without  discrimination  in  the  same  degree  as  to  nationals, 
he  has  no  right  to  invoke  the  responsibility  of  the  state  for  damage 
which  he  may  sustain.-  However  unqualified  this  doctrine  may  be,  as  a 
matter  of  principle,  the  practice  of  the  stronger  nations  in  their  relations 
with  the  exploited  countries  of  the  world  has  demonstrated  that  this 
axiom  is  conditioned  upon  the  premise  that  the  local  civil  and  criminal 
law  and  its  administration  do  not  fall  below  the  standard  of  civilized 
justice  established  by  international  law.  Assuming  that  the  interna- 
tional standard  in  a  given  case  has  not  been  trangressed  by  the  municipal 
law  of  the  state, — always  a  delicate  and  dangerous  allegation — the  duty 
of  the  alien's  home  state  is  confined  to  securing  for  him  the  benefit  of  the 
local  law  or  indemnity  for  failure  to  extend  it  to  him.  In  first  instance 
the  alien's  right  is  measured  by  the  municipal  law  of  the  state  of 
residence. 

Nor  is  the  state  a  guarantor  of  the  safety  of  aliens.  It  is  simply 
bound  to  provide  administrative  and  judicial  machinery  which  would 
normally  protect  the  alien  in  his  rights.  Even  a  treaty  providing 
for  "special  protection"  has  been  held  not  to  be  an  insurance  against 
all  injury,  but  merely  places  aliens  on  an  equality  with  citizens  in 
this  respect.^  As  a  general  rule,  moreover,  the  responsibility  of  the 
state  for  a  failure  to  protect  an  alien  is  measured  by  its  actual  ability 
to   protect.'^ 

Again,  before  the  international  responsibiUty  of  the  state  may  be 
invoked,  the  alien  must  under  normal  conditions  exhaust  his  local 

'  The  variations  and  modalities  of  and  exceptions  to  these  principles  have  been 
discussed  supra  under  Aliens  or  will  be  treated  under  the  special  topics  of  this  chapter. 

2  White  (Gt.  Brit.)  v.  Peru,  July  1863,  award  April  13,  1864,  Moore's  Arb.  4967; 
La  Forte  (Gt.  Brit.)  v.  Brazil,  Jan.  5,  1863,  Moore's  Arb.  4925;  McDonald's  case 
(Gt.  Brit.)  V.  Prussia,  Calvo,  III,  §  1279.  Gushing,  Atty.  Gen.  in  7  Op.  Atty.  Gen. 
229,  234. 

^  Wadsworth,  U.  S.  commissioner,  in  Prats  (Mex.)  v.  U.  S.,  July  4,  1868,  Moore's 
Arb.  2889;  Baldwin  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  2859. 

*  Mr.  Sherman,  Sec'y  of  State,  to  Mr.  Dupuy  de  L6me,  July  6,  1897,  For.  Rel., 
1897,  516.    But  see  Benjamin,  op.  cit.,  27. 


180  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

remedies  and  establish  a  denial  or  undue  delay  of  justice,  which  in 
last  analysis  is  the  fundamental  basis  of  an  international  claim.^ 

The  Hability  of  a  state  must  be  predicated  on  the  violation  in  some 
respect  of  its  international  obligations.  For  present  purposes  our 
inquiry  is  confined  to  the  duties  of  the  state  toward  ahens.  Some  of 
the  topics  relating  to  this  subject,  such  as  admission,  exclusion  and 
expulsion,  extradition,  military  service,  civil  rights,  jurisdiction,  arrest 
and  imprisonment,  etc.,  have  been  discussed  under  the  head  of  Aliens. 
In  the  present  and  the  following  chapters  we  shall  examine  the  respon- 
sibility of  the  state  for  injuries  sustained  by  aliens  during  mob  violence, 
civil  war,  international  war  and  under  other  circumstances. 

AUTHORITIES   OF   THE   STATE 

§  74.  Different  Classes  of  Authorities. 

Before  examining  these  questions,  however,  it  will  first  be  necessary 
to  determine  the  agencies,  instruments  or  persons  whose  acts  may 
render  the  state  responsible — in  other  words,  who  are  authorities  of 
the  state.  This  question  is  one  of  vital  importance,  as  is  apparent 
from  the  fact  that  general  claims  conventions  usually  provide  that  the 
state  shall  be  held  Uable  only  for  injuries  inflicted  upon  the  persons  or 
property  of  foreigners  by  the  ''authorities"  of  the  state.  Our  first 
inquiry  therefore,  will  be  directed  toward  establishing  who  are  au- 
thorities or  organs  of  the  state,  for  whose  action  the  state  is  directly 
responsible,  and  in  the  second  place,  who  are  the  persons  for  whose  acts 
towards  aliens  the  state  is  held  to  indirect — or,  as  Oppenheim  puts  it, 
vicarious — responsibility,  this  indirect  responsibility  being  predicated 
upon  a  negligent  failure  to  prevent  or  punish  the  commission  of  the 
injurious  act  or  to  open  to  the  injured  alien  the  necessary  judicial 
recourse  against  the  individual  wrongdoers. 

Under  the  first  head,  we  shall  discuss  those  agencies  of  government 
whose  acts  may  be  said  to  represent  the  acts  of  the  state,  i.  e.,  the 
legislative,  executive  and  judicial  organs  of  the  state.  Here  also  will 
be  considered  the  extent  to  which  de  facto  governments,  constituent 
states  and  minor  political  subdivisions  of  the  state  may  be  regarded 
as  authorities.    Under  the  second  head,  we  shall  discuss  the  positior* 

1  Infra,  §  127  et  seq. 


ACTS  OF  LEGISLATION  181 

of  minor  officials,  soldiers  and  individuals,  and  the  circumstances 
under  which  their  acts  may  render  the  state  internationally  liable.  The 
order  of  discussion  will  deviate  somewhat  from  the  above  classifica- 
tion. 

1.    LEGISLATIVE  AUTHORITIES 

§  75.  Acts  of  Legislation. 

The  legislature  is  an  organ  of  the  state  for  whose  acts  the  state 
is  directly  responsible.^  It  has  been  noted  that  in  municipal  law 
no  action  lies  against  the  government  for  acts  of  legislation  unless 
the  statute  itself  or  the  constitutional  law  of  the  state  so  prescribes. 
But  a  statute  is  no  defense  against  a  breach  of  international  obligations. 
When  acts  of  legislation, — among  which  may  be  included  administra- 
tive decrees  and  ordinances  having  the  force  of  law — have  been  deemed 
violative  of  the  rights  of  aUens  according  to  local  or  international 
law,  foreign  governments  have  not  acquiesced  in  the  theory  of  the 
non-liability  of  the  state  and  have  on  numerous  occasions  successfully- 
enforced  claims  for  the  injuries  sustained  by  their  subjects.  Good 
offices  or  remonstrances  are  often  employed  to  prevent  legislation 
deemed  prejudicial  to  national  interests.  Where  such  an  act  is  in 
direct  violation  of  international  law,  responsibility  is  clear.  Thus, 
since  the  Paris  Declaration  of  1856  blockades  to  be  internationally 
recognized  as  binding  must  be  effective.  The  attempts  of  some  states, 
therefore,  by  legislative  act  or  decree  to  estabhsh  a  paper  blockade 
of  ports  in  the  hands  of  insurgents  have  met  with  opposition  from 
the  home  governments  of  nationals  whose  rights  were  thus  prejudiced." 
The  mere  closure  of  a  port  within  its  control  or  a  decree  of  non- 
intercourse  is  ordinarily  within  the  police  power  of  the  state  and 
not  a  violation  of  international  law.^ 

^  Bonfils-Fauchille,  6th  ed.,  §  325;  Chretien,  op.  cii.,  §  208;  Clunet,  Consultation, 
op.  cit.,  25;  Audinet  in  20  R.  G.  D.  I.  P.  5,  22. 

2  De  Care  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  817;  Martini  (Italy)  v. 
Venezuela,  ibid.  845;  Orinoco  Asphalt  Co.  (Germany)  v.  Venezuela,  ibid.  588;  Minister 
Furniss  to  the  Haitian  Secretary  for  Foreign  Affairs,  Nov.  28,  1908,  For.  Rel.  1908, 
442.  An  executive  decree  comes  within  the  same  principle.  French  Co.  v.  Peru, 
Tchernoff,  op.  cit.,  299  note.  Protest  of  U.  S.  against  Guatemalan  decree  of  1909, 
For.  Rel.  1909,  p.  344. 

'  Award  of  President  of  Chile  on  the  claims  of  British  subjects  against  Argentine 


182  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

The  institution  of  a  governmental  industrial  monopoly,  while  not 
involving  any  municipal  responsibility  of  the  state  unless  so  pre- 
scribed by  the  legislature,  has  on  several  occasions  afforded  ground 
for  an  international  claim  in  behalf  of  aliens  who  had  previously 
engaged  in  the  industry  now  monopolized  by  the  state.  So,  the  sulphur 
monopoly  of  Sicily  established  by  decree  of  July  9,  1838  was  held  on 
arbitration  to  be  an  interference  with  vested  rights  and  to  involve 
the  international  responsibility  of  that  government.^  The  protests 
of  Great  Britain  and  France  resulted  in  Uruguay's  receding  from  its 
position  in  establishing  a  state  monopoly  of  life  insurance  in  its  law 
of  1912.  Italy  in  a  similar  case  maintained  its  right  to  establish  such 
a  monopoly,^  notwithstanding  the  opinion  of  many  jurists  that  by 
so  doing  it  incurred  international  responsibility. 

Every  state  has  the  right  to  impose  customs  duties,  which  may  be 
changed  at  the  discretion  of  the  government.  There  is  no  vested 
right  in  importers  under  the  customs  law  which  they  may  count 
upon.^  Nevertheless,  it  is  unusual  for  governments  to  make  sudden 
and  unexpected  changes  in  these  laws  or  to  apply  them  to  previous 
transactions.  Thus,  Secretary  of  State  Fish  protested  against  certain 
Spanish  customs  laws  in  Porto  Rico  which  imposed  a  heavy  export 
tax  on  sugar  and  molasses,  and  were  applied  to  preexisting  contracts 
of  American  citizens,  concluded  when  no  tax  was  in  force.^  In 
the  absence  of  treaty  stipulation,  there  is  nothing  to  prevent  a  govern- 
ment from  legally  imposing  different  import  duties  in  one  section  of 

for  losses  arising  out  of  a  decree  of  Feb,  14,  1845  prohibiting  vessels  from  Montevideo 
to  enter  Argentine  ports,  Moore's  Arb.  4916;  Poggioli  (Italy)  v.  Venezuela,  Feb.  13, 
1903,  Ralston,  870.  The  case  is  difTerent  where  the  state  is  estopped  by  contract 
from  closing  a  port.  Martini  (Italy)  v.  Venezuela,  ibid.  819.  The  state  may  legally 
suspend  traffic  on  a  river  flowing  through  it.  Faber  (Germany)  v.  Venezuela,  Feb.  13, 
1903,  Ralston,  626,  630. 

'30  St.  Pap.  111-120;  La  Fontaine,  Pasicrisie,  97.  See  also  Savage  (U.  S.)  f. 
Salvador,  Moore's  Arb.  1855.  Such  right  may  be  considered  vested  by  treaty,  con- 
tract, legislative  act  or  even,  it  has  been  contended,  by  custom. 

^  Supra,  p.  126. 

^  Beckman  (Germany)  v.  Venezuela,  Feb,  13,  1903,  Ralston,  599. 

*  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Lopez  Roberts,  Spanish  minister,  April  3,  1S69, 
Moore's  Dig.  VI,  752.  The  U.  S.  has  on  several  occasions  instructed  its  representa- 
tives abroad  to  use  their  good  offices  to  prevent  proposed  iucieases  of  tariff  duties 
deemed  prejudicial  to  American  interests. 


LIMITATIONS   UPON  THEIR  POWER.      CONTRACTUAL  RELATIONS  183 

its  territory  from  those  charged  in  another  section.^  The  debase- 
ment of  the  currency  by  legislative  decree,  impairing  the  rights  of 
American  citizens,  has  on  one  or  two  occasions  met  with  the  earnest 
remonstrance  of  the  United  States.^ 

2.    EXECUTIVE   AND    ADMINISTRATIVE   AUTHORITIES 

§  76.  Limitations  upon  their  Power.    Contractual  Relations. 

The  organs  of  the  state  in  its  executive  and  administrative  branch 
are  determined  by  municipal  constitutional  law.  In  a  few  cases,  the 
acts  of  the  rulers  of  the  state  have  been  held  to  be  internationally 
binding  upon  the  state.^  But  as  a  general  rule,  the  power  of  the  head 
of  the  state  and  of  the  cabinet  ministers  and  higher  officials  to  in- 
volve the  state  in  responsibility  is  tested  in  first  instance  by  munic- 
ipal law.'*  This  is  especially  so  in  the  matter  of  contractual  obli- 
gations. The  power  of  officers  of  the  government,  superior  and  in- 
ferior, to  bind  the  government  is  Hmited  by  their  legal  authority 
to  enter  into  such  obligations.^    This  authority  is  generally  strictly 

»  Bronner  (U.  S.)  !^.  Mexico,  July  4,  1868,  Moore's  Arb.  2871. 

2  Moore's  Dig.  VI,  753-754.  Venezuelan  bond  cases,  Aspinwall  (U.  S.)  v.  Vene- 
zuela, Dec.  5,  1885,  Moore's  Arb.  3641-42.  Claims  were  paid  by  Venezuela  for  the 
operation  of  the  "stay"  or  "espera"  law  of  1849,  which  improperly  provided  for  the 
extinction  or  suspension  of  debts  due  from  Venezuelan  debtors  to  foreign  creditors. 
But  the  Act  of  Congress  of  1862  making  paper  money  legal  tender  was  held  not  to 
involve  the  Government  in  liability,  although  it  unfavorably  affected  preexisting  con- 
tracts.   Adams  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3066. 

3  Murat's  orders  to  confiscate  American  vessels  rendered  the  Government  of  the 
two  Sicilies  responsible.  The  Neapolitan  Indemnity,  Moore's  Arb.  4575.  Pres. 
Zaldivar  by  his  own  contract  bound  Salvador  to  sell  the  Salvadorean  Grovemment 
Printing  Office  to  an  Italian  subject.    For.  Rel.,  1888,  I,  77,  120. 

*  Halleck,  I,  ch.  Xlll,  §§  3-4;  Oppenheim,  I,  211;  Attorney-General  Gushing  in  7 
Op.  Atty.  Gen.  238.  Day  and  Garrison  (U.  S.)  i'.  Venezuela,  Dec.  5,  1885,  Moore's 
Arb.  3563.  De  facto  authorities,  however,  although  not  acting  in  strict  accordance 
with  the  Constitution,  may  by  their  acts  bind  the  nation.  Dreyfus  (France)  v. 
Chile,  July  23,  1892  (award,  July  5,  1901),  Descamps  &  Renault,  Rec.  int.  des 
traites  du  xx«  siecle,  1901,  pp.  396-398. 

*  See  supra,  p.  170  (municipal  responsibihty)  and  infra,  p.  ^299  (contract  claims) 
and  cases  of  Wallace,  Beales,  Zander,  and  Trumbull  (an  exceptional  case)  there 
cited.  See  also  Bemadou  (U.  S.)  v.  Brazil,  Moore's  Arb.  4620;  Widman  (U.  S.)  v. 
Mexico,  July  4,  1868,  Moore's  Arb.  3467;  Kearney  (U.  S.)  t>.  Mexico,  ibid.  3468; 
Rowland  (U.  S.)  v.  Mexico,  March  3,  1849,  ibid.  3458;  Alvarez  (U.  S.)  v.  Mexico, 


184  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

construed.  The  President  of  a  country  cannot  legally  grant  or  alter 
the  terms  of  concessions  to  foreigners,  if  the  constitutional  law  of 
the  country  requires  the  approval  of  Congress  for  such  acts.  Those 
dealing  with  agents  of  the  state  are  ordinarily  bound  by  their  actual 
authority,  and  not,  as  in  private  law,  by  their  ostensible  authority. 
But  in  the  Trumbull  case,^  the  apparent  authority  of  a  diplomatic 
officer  to  contract  was  held  sufficient  to  bind  his  government,  and 
in  the  Metzger  case,^  Judge  Day  expressed  the  opinion  that  the  "limi- 
tations upon  official  authority,  undisclosed  at  the  time  to  the  other 
government,"  do  not  "prevent  the  enforcement  of  a  diplomatic 
agreement." 

Again,  presumably  on  the  theory  of  quasi-contract  or  unjust  en- 
richment, the  state  is  liable  for  the  wrongful  acts  of  its  officers  from 
which  it  derives  a  benefit.  Thus  the  taking  of  private  property  for 
the  public  use  or  benefit  has  always  been  an  accepted  ground  of  inter- 
national claim  for  compensation.^  Similarly,  for  wrongful  seizures 
and  for  excess  or  unjust  collections  of  customs  duties  or  taxes  by  reve- 
nue officers  the  government  is  responsible.^ 

April  11,  1839,  ibid.  3426;  Smith  (U.  S.)  v.  Mexico,  March  3,  1849,  ibid.  3456;  Sturm 
(U.  S.)  V.  Mexico,  July  4,  1868,  ibid.  2756.  This  question  was  argued  in  the  Hemming 
case  before  the  British-American  Claims  Commission,  Aug.  18,  1910,  Great  Britain 
contesting  the  general  rule.    No  award  has  yet  been  made  (1914). 

*  On  equitable  considerations,  in  Trumbull  (Chile)  v.  U.  S.,  Aug.  7,  1892,  an  award 
was  made  on  the  ground  that  claimant  in  Chile  had  a  right  to  assume  that  the  U.  S. 
minister  in  engaging  his  legal  services  was  authorized  so  to  do,  and  that  he  was  not 
bound  by  the  limitations  of  R.  S.,  §  3732.  Neither  diplomatic  officers  nor  consuls,  in 
the  absence  of  specific  instructions,  have  authority  to  employ  counsel  in  extradition 
or  other  government  cases.    Cons.  Reg.,  §§  517,  530. 

2  Metzger  (U.  S.)  v.  Haiti,  Oct.  18, 1899,  For.  Rel.  262. 

3  Ashmore  (U.  S.)  v.  China,  1884,  Moore's  Arb.  1857;  Baldwin  (U.  S.)  v.  Mexico, 
April  11,  1839,  ibid.  3235;  Metzger  (Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston, 
578;  De  Garmendia  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  ibid.  10;  Putegnat's  Heirs 
(U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  3720.  See  also  infra,  p.  169.  Even 
where  the  original  taking  of  property  is  lawful,  its  unreasonable  detention  has  been 
held  to  warrant  an  award.  Baldwin,  supra;  Shaw  (U.  S.)  v.  Mexico,  April  11,  18.39, 
Moore's  Arb.  3265;  Bischoff  (Germany)  v.  V(>nezuela,  Feb.  13,  1903,  Ralston,  581. 

^  Monnot  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  171;  Smith  (U.  S.)  ;>.  Mexico, 
April  11,  18.39,  Moore's  Arb.  3374;  Lewis  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's 
Arb.  .3019;  Only  Son,  (U.  S.)  o.  Great  Britain,  Feb.  8,  1853,  ibid.  3404;  Mr.  Davis  to 
Mr  Foster,  June  23,  1883,  Wharton,  I,  158. 


TORTIOUS   ACTS  185 

§  77.  Tortious  Acts. 

It  is  when  we  come  to  deal  with  the  international  responsibility 
of  the  state  for  the  torts  of  its  administrative  and  executive  officers 
that  more  serious  difficulties  are  encountered.  Some  of  the  problems 
that  at  once  present  themselves  are  these:  Did  the  officer  act  as  an 
agent  of  the  state,  or  in  his  personal  capacity?  Is  the  state,  therefore, 
or  he  alone  liable?  Was  he  a  superior  officer  whose  acts  within  the 
scope  of  his  authority  directly  bind  the  state,  or  an  inferior  or  minor 
official  against  whom  judicial  remedies  must  be  pursued  and  for  those 
acts  the  state  is  not  liable  except  in  case  of  failure  to  afford  judicial 
recourse  to  the  person  injured,  or  itself  to  punish  the  delinquent 
official?  An  examination  of  the  cases  shows  the  subject  to  be  in 
the  utmost  confusion,  and  the  distinctions  just  mentioned  very  vaguely 
drawn.  Oppenheim  and  Hall  remark  that  the  wrongful  acts  of  ad- 
ministrative officials  (these  oflficers  being  under  the  disciplinary  con- 
trol of  the  executive)  are  presumably  acts  sanctioned  by  the  state, 
until  such  acts  are  disavowed,  the  authors  punished,  and  pecuniary 
reparation  made.^  Strictly  construed,  this  would  make  of  the  state 
practically  a  guarantor  of  the  efficiency  and  correct  operation  of  its 
administrative  agencies.  As  a  matter  of  fact  the  state  is  not  respon- 
sible either  for  all  its  administrative  officers  or  for  all  their  acts.  It 
may  be  said,  first  of  all,  that  for  such  of  their  acts  as  are  personal 
and  outside  the  scope  of  their  functions,  they  alone  are  liable  and  the 
duty  of  the  state  is  Umited  to  affording  the  injured  person  judicial 
recourse  against  the  officer  according  to  local  law.  As  will  be  seen, 
this  rule  has  even  been  extended  to  the  official  acts  of  some  minor 
officials.  It  must  be  added,  however,  that  notwithstanding  the  fact 
that  the  local  law  of  most  countries  grants  a  private  right  of  action 
against  wrongdoing  minor  officials,  foreign  govenmients,  especially 
in  deaUng  with  the  weaker  countries  of  Latin- America,  have  not  been 
willing  to  confine  their  injured  subjects  to  the  dubious  and  often  futile 
legal  remedy  against  the  officer,  but  have  had  recourse  to  diplomatic 

'  Oppenheim,  I,  218;  Hall,  214.  Quoted  with  approval  in  Metzger  (Germany)  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  578,  and  Gage  (U.  S.)  v.  Venezuela  (by  Bain- 
bridge,  Amer.  commissioner)  ibid.  165.  Maal  (Netherlands)  v.  Venezuela,  Feb.  28, 
1903,  Ralston,  914  (government  liable,  "unless  they  reprimand,  punish  or  discharge" 
the  officer). 


186  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

interposition  when  the  wrongdoing  official  acted  in  his  capacity  as  an 
agent  of  the  government. 

While  it  is  generally  admitted  that  the  strict  rules  of  agency  do  not 
apply  to  the  relations  between  the  government  and  its  officers  so 
as  to  make  the  former  liable  for  all  wrongful  acts  of  the  latter  within 
the  scope  of  their  authority/  still  international  commissions  have 
not  always  been  guided  by  the  distinction,  and  awards  have  been 
made  on  proof  of  the  mere  fact  that  an  officer  of  the  government  com- 
mitted the  injury  in  question.  Where  the  act  has  been  that  of  a  higher 
official  or  supreme  authority  in  a  given  jurisdiction,  the  presumption 
is  that  it  was  an  act  of  the  state  and  the  government  has  ordinarily 
been  held  to  incur  a  direct  responsibility.-  An  express  or  tacit  rati- 
fication of  the  act  clearly  casts  liability  on  the  state.^  There  have, 
however,  been  numerous  cases  of  injuries  by  administrative  officers, 
where  no  inquiry  was  directed  toward  establishing  their  superior  or 
inferior  official  character  or  the  possibility  or  fact  of  judicial  recourse 
or  punishment,  government  Hability  being  predicated  on  the  mere 
malfeasance  or  non-feasance  of  officers  upon  whom  a  distinct  govern- 
mental duty  was  incumbent.^     Under  this  head,  customs  authorities 

1  See  dictum  by  Duffield,  Umpire,  in  Christern  (Germany)  v.  Venezuela,  Feb.  13, 
1903,  Ralston,  523. 

2  Even  the  possibility  of  legal  recourse  against  the  officer  would  hardly  free  the 
state  from  liability.  See  Johnson  (U.  S.)  v.  Peru,  Dec.  4,  1868,  Moore's  Arb.  1656 
(in  addition,  a  decree  for  redress  had  been  left  unexecuted).  See  also  dictum  in 
Oberlander  and  Messenger  (U.  S.)  v.  Mexico,  March  2,  1897,  For.  Rel.,  1897,  386 
citing  Calvo,  III,  120,  and  Cinecue  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb. 
3127  (original  in  MS.  Op.  I,  14,  15,  not  quoted  in  Moore);  Lalanne  and  Ledour 
(France)  v.  Venezuela,  Feb.  19,  1902,  Ralston,  501;  Post-Glover  Co.  (U.  S.)  v. 
Nicaragua,  March  22,  1900,  For.  Rel.  835  (governor  of  a  province);  Magee  (Gt. 
Brit.)  V.  Guatemala,  1874  (flogging  and  unlawful  imprisonment  by  order  of  Com- 
mandante),  65  St.  Pap.  875.  But  see  Bensley  (U.  S.)  i>.  Mexico,  March  3,  1849, 
Moore's  Arb.  3018,  where  Government  was  held  not  hable  for  personal  act  of  Gov- 
ernor of  a  constituent  state  of  Mexico. 

^Eclipse  (U.  S.)  V.  Mexico,  March  3,  1849,  Moore's  Arb.  3397;  Comp.  Gen. 
des  Asphaltes  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  338;  Fiore,  Nouv. 
dr.  int.  pub.  (Antoine's  trans.),  §§  667,  668. 

*  Mr.  Everett  to  Mr.  Carvallo,  Feb.  23, 1853,  Moore's  Dig.  VI,  741.  (It  was  sought 
to  hold  Chile  liable  for  spoliations  by  "officers"  of  Chile.)  Moses  (U.  S.)  v.  Mexico, 
July  4,  1868,  Moore's  Arb.  3127;  Henriquez  (Netherlands)  v.  Venezuela,  Feb.  28, 
1903,  Ralston,  896;  Grossman  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  ibid.  298; 


DIPLOMATIC,    NAVAL   aND    MILITARY    OFFICERS  187 

have  frequently  been  held  to  be  authorities  whose  unlawful  acta 
involve  a  direct  responsibility  of  the  state.  ^ 

§  78.  Diplomatic,  Naval  and  Military  Officers. 

Diplomatic  officers  are  considered  authorities  of  the  state  with  respect 
to  all  acts  within  the  apparent  scope  of  their  authority.^ 

The  heads  of  the  military  arm  of  the  government,  the  commander  of 
vessels  and  of  armed  land  forces  are  presumed  to  represent  the  state 
in  their  official  acts,  and  to  involve  its  responsibility  for  unlawful  acts 
inflicting  injury  upon  aliens.^ 

In  the  cases  of  commanders  of  vessels,  even  if  the  government  dis- 

Culliton  case  in  Colombia,  22  Op.  Atty.  Gen.  32,  Feb.  7,  1898;  Canada  (U.  S.) 
V.  Brazil,  March  14,  1870,  Moore's  Arb.  1733;  see  also  supra,  p.  185,  note  1. 

*  For  wrongful  collections  of  customs  and  confiscation  of  goods,  see  supra,  note  4, 
p.  184.  For  unlawful  seizures  and  detentions  of  vessels  and  unjustifiable  refusal  to 
clear  vessels,  see  Labuan  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3791; 
William  Lee  (U.  S.)  v.  Peru,  Jan.  12,  1863,  ibid.  3405;  Sibley  (U.  S.)  v.  Mexico, 
April  11,  1839,  ibid.  3045;  Hammond  (U.  S.)  v.  Mexico,  Apr.  11,  1839,  ibid.  3241; 
Lalanne  (France)  v.  Venezuela,  Feb.  19,  1902,  Ralston,  501;  Ballistini,  ibid.  503; 
Comp.  Gen.  des  Asphaltes  (Gt.  Brit.)  v.  Venezuela,  ibid.  336.  See  also  revenue  cases 
in  Moore's  Arb.  3361-3407.  Where  seizures  have  been  based  on  alleged  violations 
of  local  law,  international  commissions  will,  virtually  as  a  court  of  appeal,  reexamine 
the  legaUty  and  regularity  of  the  seizure.  Phare  (France)  v.  Nicaragua,  Oct.  15, 
1879,  La  Fontaine,  225,  Moore's  Arb.  4870;  Havana  Packet  (Netherlands)  v. 
Dominican  Rep.,  March  26,  1881,  La  Fontaine,  241,  Moore's  Arb.  5036;  Butterfield 
(U.  S.)  V.  Denmark,  Dec.  6,  1888,  Moore's  Arb.  1204;  Consonno  (Italy)  v.  Persia, 
June  5,  1890,  La  Fontaine,  342.  As  to  sanitary  authorities,  see  Lavarello  (Italy)  v. 
Portugal,  Sept.  1,  1891,  La  Fontaine,  411. 

2  In  Trumbull  (Chile)  v.  V.  S.,  Aug.  7,  1892,  Moore's  Arb.  3569  the  rule  was  ex- 
tended to  include  acts  within  the  minister's  ostensible  authority.  It  is  probable  that 
a  lease  signed  by  a  diplomatic  representative  of  a  foreign  government  would  bind  his 
government. 

A  consul's  authority  to  bind  his  government  would  be  more  strictly  construed. 
Responsibihty  for  unauthorized  acts  when  acting  in  the  interests  of  private  persons, 
e.  g.,  the  settlement  of  estates,  has  been  held  to  rest  upon  the  consul  and  not  upon  the 
government.  For  wrongful  official  acts  such  as  unlawful  refusal  to  clear  vessels,  the 
government  has  been  held  responsible.  (Comp.  Gen.  des  Asphaltes,  Gt.  Brit.  v. 
Venezuela,  Ralston,  336.)  The  advice  of  a  consul  or  of  a  minister  as  to  what  his  gov- 
ernment will  consider  contraband,  as  to  what  cargo  is  exempt,  as  to  what  class  of 
trade  is  permissible,  etc.,  does  not  bind  his  government.  The  Hope,  1  Dodson, 
229;  The  Joseph,  8  Cranch,  451;  The  Benito  Estenger,  176  U.  S.  568,  574. 

»  Maninot  (France)  i>.  Venezuela,  Feb.  19,  1902,  Sen.  Doc.  533,  59th  Cong.  1st  seaa. 
44,70. 


188  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

avows  the  act,  indemnities  have  been  awarded.  Thus,  in  1868  the 
cabinet  at  London  disapproved  the  conduct  of  a  captain  of  an  English 
ship  of  war  which  without  orders  bombarded  the  city  of  Cape  Haitien 
and  blockaded  the  port.  Great  Britain  indemnified  the  French  and 
German  merchants  whose  property  and  goods  were  thereby  destroyed. 
Similarly,  a  violation  of  frontiers,  collision  of  a  private  vessel  with  a 
national  public  vessel  through  the  latter's  fault,  or  the  illegal  capture  of 
private  vessels  involves  the  responsibility  of  the  state.  ^  Unlawful 
captures  by  privateers  involve  the  responsibility  of  the  state, ^  but 
not  the  acts  of  a  vessel  which  has  revolted  against  the  government.^ 

By  article  3  of  the  Hague  Convention  of  1907  concerning  the  laws 
and  customs  of  war  on  land,  the  state  is  made  liable  for  all  acts  com- 
mitted by  persons  forming  part  of  its  armed  forces.'*  In  the  case  of 
pillage  by  uniformed  soldiers,  the  state  is  ordinarily  only  responsible 
if  they  are  under  the  command  of  officers.^ 

Police  officials  are  not  usually  held  to  be  "authorities"  of  the  state. 
Nevertheless  when  the  duty  is  incumbent  upon  them  to  prevent  a 
violation  of  law,  and  they  forsake  their  preventive  function  and  actually 

•  Bry,  5th  ed.  (1906),  p.  461;  Case  of  the  Panther,  1906  (Brazil)  v.  Germany, 
Oppenheim,  219  (violation  of  Brazilian  territory);  The  Schooner  Henry  (U.  S.) 
V.  Peru,  March  17,  1841,  Moore's  Arb.  4601  (seizure  of  vessel);  Confidence  (Gt. 
Brit.)  V.  U.  S.,  Feb.  8,  1853,  Moore's  Arb.  3063  (collision);  Lindisfame  (Gt.  Brit.) 
V.  U.  S.,  Aug.  18,  1910,  7  A.  J.  I.  L.  875.  See  also  14  Clunet  (1887),  598,  Bonfils, 
§  329,  Calvo,  §  1265,  and  Moore's  Dig.  VI,  §  1008.  Congress  occasionally  refers  to 
the  courts  the  complaints  of  aliens  arising  out  of  collisions  between  foreign  ships  and 
U.  S.  public  vessels.  S.  4273,  63rd  Cong.,  2nd  sess.  See  also  23  Stat.  L.  496  and 
supra,  p.  166. 

2  France  v.  New  Grenada,  Ecuador  and  Venezuela,  49  St.  Pap.  1301;  Great  Britain 
V.  Buenos  Ayres,  July  19,  1830,  18  St.  Pap.  685,  La  Fontaine,  92;  U.  S.  v.  Venezuela, 
May  1,  1852,  Malloy,  Treaties,  1910,  II,  1842. 

'  Case  of  the  Peruvian  vessel  Huascar,  68  St.  Pap.  745.  A  decree  rejecting  re- 
sDonsibility  for  her  acts  had  been  issued  by  Peru,  May  8,  1877.  Even  in  the  absence 
of  a  decree,  her  responsibility  is  doubtful. 

^Oppenheim,  I,  218;  Hall,  214;  Adams  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's 
Arb.  3065.  For  appropriations  of  private  property  and  unnecessary  devastation,  see 
cases  in  Ralston's  International  Arbitral  Law,  §  605  cl  seq.,  and  infra,  §§  80,  104. 
Baasch  and  Rbmer  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  909.  Speyers 
(U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  2868  (tariff  promulgated  by  com- 
manding general).  A  mihtary  occupant  may  establish  a  nationally  valid  tariff. 
McCalmont  (Gt.  Brit.)  v.  U.  S.,  Feb.  8,  1853,  Moore's  Arb.  2866. 

'  Infra,  p.  193. 


MINOR    OFFICIAIS  189 

participate  in  such  violation,  their  action  seems  to  involve  a  direct 
responsibility  of  the  state.  ^ 

§  79.  Minor  Officials. 

The  presumption  that  the  international  responsibility  of  the  state 
is  engaged  by  the  unlawful  acts  of  its  agents  does  not  as  a  general 
rule  extend  to  the  tortious  acts  of  minor  officials,  unless  the  government 
by  some  delinquent  action  of  its  own — either  failure  to  afford  redress 
in  its  courts  to  the  injured  individual  or  to  punish  the  guilty  officer — 
may  be  considered  as  having  adopted  or  sanctioned  the  wrongful  act. 
This  is  especially  true  of  such  personal  and  malicious  acts  as  are  out- 
side the  scope  of  the  ofl&cer's  real  or  apparent  authority.  It  has  al- 
ready been  noted  that  the  municipal  law  of  different  countries  varies 
as  to  the  responsibility  for  a  wrongful  act  of  an  officer,  some  states, 
such  as  the  United  States  and  various  countries  of  Latin-America 
denying  all  responsibihty  for  torts  of  officers  and  remitting  the  in- 
jured individual  solely  to  his  action  against  the  officer,  and  other  states, 
such  as  France  and  Germany,  assuming  a  large  measure  of  responsi- 
bility for  its  officer's  official  acts  but  denying  liability  for  his  personal 
acts."  That  the  rule  of  international  law  first  above  mentioned  has 
suffered  numerous  exceptions,  we  have  already  had  occasion  to  note; 
yet  an  examination  of  a  great  many  cases  confirms  the  view  that  as 
a  general  principle  the  state  is  not  responsible  for  the  wanton  or  un- 
lawful acts  of  its  minor  officials,  unless  it  has  directly  authorized,  or 
after  notice,  failed  to  prevent,  the  act,  or  by  failure  to  arrest,  try  or 
punish  the  guilty  offender,  or  to  allow  free  access  to  its  courts  to  the 
injured  parties,  it  may  be  charged  with  actual  or  tacit  compUcity  in 
the  injury.^  One  important  reason  for  this  rule  is  that  the  wrongful 
act  of  the  minor  official  is  not  presumed  to  be  the  act  of  the  state  until 

'  Panama  riot,  Jul}'  4,  1912;  A  riot  which  occurred  at  Panama  April  2,  1915,  in 
which  a  policeman  killed  a  U.  S.  soldier,  will  probably  render  the  Panaman  gov- 
ernment liable;  Claim  of  Shipley  in  Turkej%  For.  Rel.  1903,  733;  Cesarino  (Italy)  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  770. 

2  Supra,  §§  55,  60. 

'  Calvo,  §  1263  et  seq.;  Bonfils,  §  330;  Fiore,  op.  cit.,  §  667;  Moore's  Dig.  VI,  §§  999- 
1000;  Anzilotti,  in  13  R.  G.  D.  I.  P.  (1906),  288-292.  The  Salvadorean  law  of 
May  10,  1910  concerning  claims  against  the  government  is  based  on  these  principles, 
as  expounded  by  Fiore. 


190  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

some  state  organ,  either  a  higher  court  or  superior  administrative 
authority,  by  some  independent  action  or  omission,  has  tacitly  ratified 
the  act. 

In  contractual  cases,  it  is  usually  a  necessary  condition  of  direct 
governmental  liability,  that  the  officer  be  employed  by  the  govern- 
ment, and  be  not  merely  a  municipal  officer.  Nor  does  the  fact  that 
the  government  issues  Ucenses  to  particular  persons,  such  as  pilots, 
or  grants  certain  monopoUes  of  public  service  to  individuals  make 
the  licensee  or  monopolist  an  agent  of  the  state  capable  of  engaging 
its  direct  responsibility.^ 

It  seems  clear  that  for  personal  acts  of  local  or  minor  officials  plainly 
outside  of  their  authority  and  not  incidental  to  their  functions,  the 
officer  alone  and  not  the  government  is  responsible.^  Difficulty  arises 
because  the  line  between  personal  and  official  acts  is  often  exceedingly 
vague.  Even  if  the  tort  of  the  officer  is  within  the  scope  of  his  func- 
tions, unless  the  government  actually  benefit  by  the  tort,  it  has  often 
been  held  that  the  only  remedy  is  against  the  officer  and  not  against 
the  government,^  although,  as  has  been  observed,  such  a  state  of  facts 
has  frequently  been  held  a  ground  of  state  liabiUty,  especially  in  Latin- 
America. 

» Horatio  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  3023;  Gushing  in  7  Op.  Atty.  Gen. 
237  (Montano  case);  Mark  Gray  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  33. 

2  See  Mr.  Bayard  to  Mr.  West,  June  1,  1885,  For.  Rel.  1885,  457  (wanton  kihing 
of  an  arrested  person  by  a  sheriff  after  execution  of  the  writ,  due  to  personal  mahce. 
This  ruling  has,  however,  been  called  in  question) ;  Bensley  (U.  S.)  v.  Mexico,  March  3, 
1849,  Moore's  Arb.  3018  (forcible  seizure  of  a  boy).  See  extracts  in  Moore's  Dig.  VI, 
742-743.  Wilson  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  3021  (cheat  prac- 
ticed by  a  municipal  guard);  Cahill  (U.  S.)  v.  Spain,  Feb.  11,  1871,  ibid.  3066  (ruin 
of  business  by  alleged  machinations  of  minor  official — probably  dictum).  But  where 
an  assault  is  connected  with  an  officer's  official  duty,  the  government  has  been  held 
liable.  Metzger  (Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  578  (incidental  to 
taking  property  for  pubhc  use).  So  where  pohce  officers  commit  a  wanton  assault, 
supra,  note  1,  p.  189,  and  "La  Masica"  case  (Gt.  Brit.)  v.  Honduras,  Memoria 
de  .  .  .  relaciones  exteriores,  1911-12. 

*  Atty.  Gen.  Griggs  in  22  Op.  Atty.  Gen.  64,  May  4,  1898  (illegal  seizures  of  ves- 
sels); Akerman,  Atty.  Gen.,  in  13  Op.  Atty.  Gen.  553  (act  of  corruption  of  inferior 
judge  in  Brazil);  Gushing  in  7  Op.  Atty.  Gen.  237;  Slocum  (U.  S.)  v.  Mexico, 
July  4,  1868,  Moore's  Arb.  3140;  Forrest  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's 
Arb.  2947;  Mr.  Tripp  to  Mr.  Mix,  Oct.  11,  1893  and  Mr.  Uhl  to  Mr.  Tripp,  Nov.  17, 
1893,  For.  Rel.,  1894,  23-26  (blunder  of  local  officers  in  Austria). 


MINOR   OFFICIALS  191 

International  commissions  have  repeatedly  held  that  in  order  to 
hold  the  government  liable  for  the  acts  of  an  officer  the  claimant  must 
resort  to  the  courts  of  the  country  and  show  an  unsuccessful  appeal 
for  redress  against  the  officer.^ 

It  has  been  held  that  the  government  must  have  had  notice  or  been 
notified  of  the  injury  before  it  could  be  made  responsible.^ 

A  government  may  often  release  itself  from  liability  by  punish- 
ing the  officer,^  for  example,  by  fine,  reprimand  and  dismissal  from 
office,^  although,  in  flagrant  cases,  indemnities  have  been  demanded 
and  paid.  The  Court  of  Claims  has  held  that  a  mere  disavowal  of 
the  act  is  not  sufficient  internationally  to  relieve  the  government 
from  liability.''  In  dealings  with  countries  of  the  Far  East  and  with 
certain  countries  of  Latin-America  in  which  disorder  is  not  an  abnor- 
mal condition,  a  request  for  punishment  of  the  officer  is  often  combined 
with  a  demand  for  a  suitable  indemnity. 

It  has  already  been  observed  that  the  responsibility  of  the  state 
for  the  acts  of  minor  officials  must  ordinarily  be  predicated  upon 
some  independent  delinquency  of  its  own.  Some  of  these  circum- 
stances upon  which  a  complicity  of  the  government  is  presumed  and 
a  resultant  liability  is  founded  are  the  following:  a  ratification  or  tacit 
adoption  of  the  wrongful  act;  ^  a  negUgent  failure  or  refusal  to  prevent 

1  The  rule  applies  to  the  acts  of  inferior  judges  as  well  as  to  other  minor  officials. 
Blumhardt  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3146;  Wilkinson  (U.  S.)  v. 
Mexico,  ibid.  3145;  Smith  (U.  S.)  v.  Mexico,  ibid.  3146;  Burn  (U.  S.)  v.  Mexico, 
ibid.  3140;  Jennings  et  al.  (U.  S.)  v.  Mexico,  ibid.  3135;  Leichardt  (U.  S.)  v.  Mexico, 
ibid.  3133;  Cramer  (U.  S.)  v.  Mexico,  iMd.  3250;  Bensley  (U.  S.)  v.  Mexico,  March  3, 
1849,  ibid.  3016;  Wilson  (U.  S.)  v.  Mexico,  ibid.  3021;  De  Zeo  (Italy)  v.  Venezuela, 
Feb.  13,  1903,  Ralston,  693;  Croft  (Gt.  Brit.)  v.  Portugal,  Award  Feb.  7,  1856, 
Moore's  Arb.  4979. 

In  flagrant  cases,  however,  this  appeal  for  judicial  redress  has  not  been  required. 
Davy  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  410. 

2  Horatio  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3024;  Isaiah  Stetson 
case  (U.  S.)  v.  Brazil,  For.  Rel.  1895,  I,  52-59  (two  soldiers  convicted  and  sentenced 
to  penitentiary  for  murder  of  U.  S.  citizens  in  street  brawl). 

'  Kellett  (U.  S.)  v.  Siam  (award  Sept.  20,  1897),  Moore's  Arb.  1862. 

*  Wright  Claim  v.  Guatemala,  1908,  For.  Rel.,  1909,  354-355;  Pierce  (U.  S.)  v. 
Mexico,  July  4,  1868,  Moore's  Arb.  3252;  Maal  (Netherlands)  v.  Venezuela,  Feb.  28, 
1903,  Ralston,  914;  Panama  police  assaults  of  July  4,  1912. 

"*  Straughan  v.  V.  S.,  1  Ct.  CI.  324. 

«  Montano  (Peru)  v.  U.  S.,  Jan.  12,  1863,  Moore's  Arb.  1630  (approval  by  Sec'y  of 


192  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

the  wrong,  there  being  opportunity  therefor;  ^  a  refusal  to  investigate 
an  assault  or  other  injurious  act,^  or  negligence  in  investigating  a 
case;  ^  a  failure  to  furnish  access  to  the  courts  to  the  injured  individ- 
ual ■*  or  by  a  pardon  depriving  an  injured  party  of  all  redress  against 
the  guilty  offenders;  ^  or  a  failure  to  try  to  arrest  and  punish  the  of- 
fender^ even  though  no  request  for  such  punishment  was  madeJ  As 
will  Ije  seen  hereafter,  these  circumstances  have  also  served  to  fasten 
liability  on  the  state  where  the  injury  was  committed  by  an  individ- 
ual.    {Injm,  §  87.) 

When  a  citizen  of  the  United  States  is  injured  abroad  by  a  minor 
official  of  a  foreign  government,  the  Department  of  State  usually 
calls  upon  the  foreign  government  to  manifest  its  disapproval  of  the 
conduct  of  its  officer,  by  reprimanding,  dismissing,  or  punishing  the 
guilty  official  and  in  addition  often  demands  the  adoption  of  meas- 
ures to  prevent  a  recurrence  of  the  offense,  and  in  flagrant  cases,  a 
pecuniary  indemnity.     When  the  guilty  officials  are  police   officers. 

State  Marcy  of  the  wrongful  act  of  a  marshal  in  negligently  failing  to  execute  a  pri- 
vate judgment).  Braden  v.  U.  S.,  16  Ct.  CI.  389  (ratification  by  Congress  of  unau- 
thorized act);  Miller  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2974  (appointing 
the  wrongdoer  to  high  office  in  the  government — Dictum  by  Lieber);  see  also  Boval- 
hns  and  Hedlund  (Sweden  and  Norway)  v.  Venezuela,  March  10,  1903,  Ralston,  952. 

1  Jonan  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3251;  KeUett  (U.  S.)  v.  Siam, 
supra,  ibid.  1862,  La  Fontaine,  604;  Schooner  Hope  (U.  S.)  v.  Brazil,  Jan.  24, 
1849,  Moore's  Arb.  4615;  Stubbs  (U.  S.)  v.  Venezuela,  1903  (U.  S.  brief,  Morris' 
Report,  122);  Panama  police  assaults,  July  4,  1912,  MS.  Dept.  of  State;  Garrison 
(U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  3129  (prevention  of  appeal  by  unlawful 
intrigues);  Armenie  claim  (France)  v.  Turkey,  1894,  2  R.  G.  D.  I.  P.  (1895),  623. 

2  Bark  Jones  (U.  S.)  v.  Great  Britain,  Feb.  8,  1853,  Moore's  Arb.  3050.  See  also 
Rule  3  of  Nicaraguan  Mixed  Claims  Commission,  1911. 

'  Panama  pohce  assaults,  July  4,  1912;  De  Brissot  et  al.  (U.  S.)  v.  Venezuela, 
Dec.  5,  1885,  Moore's  Arb.  2967  (laxness  in  investigating). 

*  Calvo,  §  1263.    This  is  of  course  equivalent  to  a  denial  of  justice. 

5  Cotesworth  and  Powell  (Gt.  Brit.)  v.  Colombia,  Dec.  14,  1872,  Moore's  Arb. 
2050,  2082,  and  case  of  Joy,  a  British  subject  in  Colombia,  decree  of  Dec.  7,  1868, 
cited  at  p.  2085. 

«  Wilson  case  (U.  S.)  v,  Nicaragua,  1894,  For.  Rel.,  1894,  470  et  seq.;  Zambrano  case 
(Mexico)  V.  U.  S.,  For.  Rel.  1904,  473-482;  De  Brissot  (U.  S.)  v.  Venezuela,  Dec.  5, 
1885,  Moore's  Arb.  2967;  Maal  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston, 
914;  Davy  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  ibid.  410;  Dominique  (France)  t. 
Venezuela,  Feb.  19,  1902,  Sen.  Doc.  533,  59th  Cong.,  1st  sess.,  185,  207. 

'  BovaUins  (Sweden  and  Norway)  v.  Venezuela,  March  10,  1903,  Ralston,  952. 


SOLDIERS  193 

whose  special  duty  it  is  to  protect  the  person  and  property  of  individ- 
uals, a  flagrant  case  arises  which  calls  for  prompt  demands  for  redress 
and  indenmity.^ 

§  80.  Soldiers. 

Soldiers  are  an  integral  part  of  the  military  arm  of  the  government. 
Soldiers  may  be  considered  authorities  rendering  the  state  liable  for 
their  acts  when  they  are  under  the  command  of  officers  or  are  carry- 
ing out  pubhc  duties  of  the  state.  On  the  other  hand,  practice  has 
fairly  well  established  the  rule  that  the  state  is  not  responsible  for  the 
wrongful  acts  of  unofficered  soldiers,  whether  incident  to  a  belligerent 
operation  or  merely  wanton  and  unauthorized  acts  of  robbery  and 
pillage."  The  claimant's  remedj'^  is  against  the  individual  wrong- 
doer.    To  render  the  government  liable  for  the  unlawful  acts  of  its 

*  Assaults  by  police  in  Panama  upon  sailors  of  U.  S.  S.  Columbia,  1906,  and 
Buffalo,  1908,  For.  Rel.  1909,  474,  485,  491;  also  assaults  of  July  4,  1912  and  April  2, 
1915.  Assault  on  H.  B.  Miller  of  U.  S.  S.  Tacorna  by  police  in  Santiago,  Cuba, 
1909. 

2  Plundering  and  pillaging  incident  to  attack.  Vesseron  (U.  S.)  v.  Mexico,  July  4, 
1868,  Moore's  Arb.  2975,  and  following  cases  before  same  commission;  Dresch,  ibid. 
3669;  Michel,  ibid.  3670;  Weil,  ibid.  3672;  Antrey,  ibid.  3672;  Denis,  ibid.  2997; 
Friery,  ibid.  4036;  Cooper,  ibid.  4039;  Buentello,  ibid.  3670;  Schlinger,  ibid.  3671; 
Tripler,  ibid.  2997;  Rule  3  of  Nicaraguan  Mixed  Claims  Com.  1911  (all  cases  of 
marauding,  pillaging,  or  robbery  incident  to  military  operations,  attacks  on  towns, 
etc.).  Parker  (U.  S.)  v.  Mexico,  Moore's  Arb.  2996;  Foster  (U.  S.)  v.  Spain,  Feb.  12, 
1871,  ibid.  2998;  Vidal  (France)  !'.  U.  S.,  Jan.  15,  1880,  ibid.  2999;  Castelain  (France) 
t'.  U.  S.,  ibid.  3000;  Hayes  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  ibid.  3688;  Henriquez 
(Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  911;  Shrigley  (U.  S.)  v.  Chile, 
Aug.  7,  1892,  Moore's  Arb.  3712;  Bacigalupi  (U.  S.)  v.  Chile,  May  24,  1897  (extend- 
ing convention  of  Aug.  7,  1892),  No.  42,  Report  of  Commission,  1901;  Magoon's 
Reports,  343;  Edgerton  (Gt.  Brit.)  v.  Chile,  Reel.  pres.  al  Trib.  Anglo-Chileno,  I, 
126  (All  cases  of  wanton  and  unauthorized  acts  of  pillage  or  violence).  See  also 
Grossman  (Gt.  Brit.)  t>.  Venezuela,  Feb.  13,  1903,  Ralston,  299.  Mr.  Bayard  to  Mr. 
Buck,  Oct.  27,  1885,  For.  Rel.  1885,  625;  Magoon's  Reports,  338,  342;  Claim  of 
Laurent  and  Lambert  v.  \J.  S.,  For.  Rel.  1907,  I,  392,  especially  Solicitor's  memo- 
randum, 396-398. 

But  see  Eigendorflf  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2975,  and  Pears' 
case  (U.  S.)  t'.  Honduras,  For.  Rel.  1900,  674-702  (negligently  shot  by  sentinel;  in- 
demnity of  $10,000  paid).  Young's  case  (U.  S.)  v.  Peru,  Moore's  Dig.  VI,  758-759; 
Campbell's  case  (U.  S.)  v.  Haiti,  Moore's  Dig.  VI,  764  (assault  by  soldiers;  $10,000 
indemnity  paid).    See  also  assaults  by  poUce  officers,  note  preceding. 


194  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

soldiers  the  claimant  must  prove  ^  that  they  were  under  the  command 
or  orders  or  control  or  in  the  presence  of  superior  officers,^  or  that 
the  officers  negligently  failed  to  take  the  necessary  precautions  to 
prevent  the  unlawful  acts  ^  or  to  punish  the  known  offenders.'*  In 
France  and  Germany,  it  will  be  recalled,  soldiers  under  command 
or  in  the  accomplishment  of  public  duties  are  held  to  be  author- 
ities of  the  state  for  whose  acts  the  government  is  municipally 
responsible.  When  the  injurious  act  may  be  construed  as  a  mili- 
tary necessity  ^  or  as  war  damages  {infra,  §  98  et  seq.)  the  government 
is  relieved  from  liability.  However,  if  private  property  unlawfully 
taken  by  soldiers  without  authority  is  applicable  to  the  proper  use 
of  the  army  and  actually  appropriated  to  army  use,  the  government 
has  been  held  liable.®  Governments  have  occasionally  paid  damages 
for  pillaging  by  government  troops,^  and  if  indemnities  are  awarded 

^  Weil,  supra,  Moore's  Arb.  3671;  Vidal,  ibid.  2999,  Hayden,  ibid.  2995;  Culberson, 
ibid.  2997  and  other  cases  cited  in  last  note. 

2  Wilkins  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  2993;  Terry  and  Angus, 
ibid.  2995;  Standish,  Parsons  and  Conrow  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's 
Arb.  3004;  Webster,  ibid.  3004;  Dunbar  and  Belknap,  ibid.  2998;  Newton  and  Lan- 
franco,  ibid.  2997;  Jeannaud  (France)  v.  U.  S.,  Jan.  15,  1880,  ibid.  3000;  Roberts 
(U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  142;  Ruden  (U.  S.)  v.  Peru,  Jan.  12, 
1863,  Moore's  Arb.  1653;  Delgado's  case  v.  Spain,  Moore's  Dig.  VI,  761;  Etzel's  case 
V.  China,  For.  Rel.,  1904,  168-176,  Moore's  Dig.  VI,  765. 

3  Jeannaud,  supra,  Moore's  Arb.  3000;  Latorre  (Gt.  Brit.)  v.  Chile,  1891,  Reclam. 
pres.  al  Trib.  Anglo-Chileno,  II,  88;  De  la  Cruz  (Mexico)  v.  U.  S.,  July  4,  1868,  MS. 
Op.  II,  527  (not  in  Moore);  Kunhardt  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston, 
()3,  69;  Shrigley  (U.  S.)  v.  Chile,  Aug.  7,  1892,  Moore's  Arb.  3712.  See  Wadsworth, 
American  commissioner,  in  Moore's  Arb.  2437;  Anciara  (Mexico)  v.  U.  S.,  ibid.  3007 
Tmustering  out  U.  S.  soldiers  on  Mexican  territory  held  neghgent). 

*  Watkins  and  Donnelly  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's  Rep.  45;  De  la 
Cruz  (Mexico)  v.  U.  S.,  July  4,  1868,  MS.  Op.  II,  527;  Eigendorff  (U.  S.)  v.  Mexico, 
Moore's  Arb.  2975,  and  Wadsworth's  dictum,  ibid.  2437;  Anciara  (Mexico)  ik  U.  S., 
.July  4,  1868,  iUd.  3007;  Maninot  (France)  v.  Venezuela,  Feb.  17,  1902,  Sen.  Doc.  533, 
.'')nth  Cong.,  Ist  sess.,  44,  70. 

'  Webster  (U.  S.)  v.  Mexico,  Moore's  Arb.  3004;  Jeannaud  (France)  v.  U.  S., 
Jan.  15,  1880,  iUd.  3000. 

«  Lavell  and  other  cases  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3688;  Vidal 
f  France)  v.  U.  S.,  Jan.  15,  1880,  iUd.  2999;  Rule  4  of  Nicaraguan  Mixed  Claims 
Com.  1911. 

'  E.  g.,  Chile  in  several  cases  before  Anglo-Chilean  tribunal  of  1891,  Strobel's  re- 
I)ort,  item  V,  For.  Rel.  1896,  35.  This  allowance  was  probably  due  to  the  wording  of 
the  protocol. 


POSITION   OF  COURTS  AND  JUDGES  195 

to  other  foreigners,  the  United  States  would  probably  demand  equal 
treatment  for  its  citizens. 

Inasmuch  as  commanding  officers  are  to  a  certain  broad  extent 
responsible  for  the  conduct  of  soldiers  under  their  command,  it  may 
happen  that  in  certain  cases  of  proved  negligence  or  carelessness  on 
the  part  of  such  officers  in  failing  to  prevent  an  act  of  depredation 
by  troops,  the  government  may  be  charged  with  liability.  It  is  in 
this  sense  that  we  must  understand  the  somewhat  ambiguous  instruc- 
tion of  Secretary  Bayard  in  1885,  the  concluding  sentence  of  which 
reads:  "But  the  mere  fact  that  soldiers,  duly  enlisted  and  uniformed 
as  such,  committed  acts  'without  orders  from  their  superiors  in  com- 
mand' does  not  relieve  their  government  from  liability  for  such  acts."  ^ 

3.   JUDICIAL    AUTHORITIES 

§  81.  Position  of  Courts  and  Judges. 

The  highest  courts  are  authorities  whose  wrongful  acts  involve 
the  state  in  Uability.  In  well-regulated  states,  the  courts  are  more 
independent  of  executive  control  than  any  other  authorities,  not  ex- 
cepting the  legislature.^  Their  errors,  therefore,  in  all  systems  of 
civilized  justice  give  rise  merely  to  such  rights  of  appeal  as  are  pro- 
vided in  local  municipal  law,  but  do  not  give  rise,  in  civil  cases,  either 
to  an  action  against  the  judge  or  against  the  state.  It  has  been  ob- 
served ^  that  certain  foreign  countries  and  recently  two  states  in  this 
country  accord  a  right  to  claim  indemnity  from  the  state  for  an  er- 
roneous conviction  in  criminal  cases.  For  flagrant  acts  of  corruption 
or  malfeasance  in  office  a  personal  action  against  the  judge  is  some- 
times granted,  although  on  principle  a  judge  is  responsible  for  official 
wrongs  not  to  third  persons  but  to  the  state  alone.  He  may  be  indict- 
able for  malicious  usurpation  of  power,  but  the  state  is  not  liable  for 
such  abuse  of  authority. 

>  Mr.  Bayard  to  Mr.  Buck,  Oct.  27,  1885,  For.  Rel.  1885,  625.  See  also  Maninot 
(France)  v.  Venezuela,  Feb.  17,  1902,  Sen.  Doc.  533,  59th  Cong.,  Ist  sess.,  44,  70. 

2  Hall,  215;  Oppenheim,  216;  Fabiani  (France)  v.  Venezuela,  Feb.  24,  1891,  Moore's 
Arb.  4878,  at  4906;  Croft  (Gt.  Brit.)  v.  Portugal,  award  of  Hamburg  Senate,  Feb.  7, 
1856,  50  St.  Pap.  1288,  Moore's  Arb.  4979;  Tchemoff,  op.  dt.,  268,  288. 

» Supra,  p.  129. 


196  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

These  principles  of  municipal  law  are  observed  in  the  international 
relations  of  states,  so  that  as  a  general  rule  the  state  is  not  liable  for 
the  acts  of  its  judicial  authorities  unless  there  has  been  some  flagrant 
or  notorious  injustice  or  denial  of  justice  sanctioned  by  the  court  of  last 
resort.^  In  a  subsequent  chapter  {infra,  §  127  et  seq.  )  the  whole  question 
of  denial  of  justice  will  be  examined  in  detail.  Our  present  inquiry 
will  be  confined  to  an  examination  of  the  cases  in  which  liabihty  has 
been  sought  to  be  fastened  upon  governments  for  the  acts  of  their 
judicial  authorities,  not  amounting  technically  to  a  denial  of  justice. 

The  Department  of  State  has  on  a  number  of  occasions  expressed  its 
adherence  to  the  rule  that  a  government  is  not  responsible  for  the 
mistakes  or  errors  of  its  courts.-     For  excess  of  jurisdiction  by  the 

'  There  are  exceptions  to  the  rule,  for  unjust  judgments  have  at  times  served  as  a 
ground  of  diplomatic  interposition  even  where  there  was  no  technical  denial  of  jus- 
tice. This  is  approved  by  Triepel  (p.  350,  note  3)  and  Wheaton  (Dana's  ed.,  §  391), 
but  is  opposed  by  Phillimore,  II,  4;  Creasy,  337;  and  Liszt,  9th  ed.,  182,  on  the  ground 
that  the  state  has  fulfilled  its  duty  by  referring  the  matter  to  independent  courts. 
Anzilotti  insists  strongly  on  the  distinction  between  unjust  judgments  reached  with- 
out violation  or  misapplication  of  municipal  or  international  law,  and  violations  of 
law  amounting  to  a  denial  of  justice.  Only  in  the  second  case  does  he  find  any  in- 
ternational responsibility.  13  R.  G.  D.  I.  P.  (1906),  21-25,  296-298.  This  just 
theoretical  distinction  is  not  usually  observed  in  international  practice;  the  Une  be- 
tween an  unjust  judgment  reached  by  proper  observance  of  the  forms  of  justice  and 
a  denial  of  justice  is  exceedingly  vague,  for  responsibility  is  often  asserted  in  either 
case. 

2  Mr.  Marcy,  Sec'y  of  State,  to  Chevalier  Bertinatti,  Dec.  1,  1856,  Moore's  Dig.  VI, 
748  (court  exceeding  jurisdiction).  Mr.  J.  C.  B.  Davis  to  Mr.  Chase,  Jan.  10,  1870, 
ilnd.  750;  U.  S.  v.  Dunnington,  146  U.  S.  338,  351.  Nor  is  the  judge  personally  re- 
sponsible for  his  errors  to  third  parties.  Mr.  Davis  to  Mr.  Chase,  Jan.  10,  1870, 
Moore's  Dig.  VI,  750;  Tchernoff,  288. 

The  rule  has  been  supported  by  international  tribunals.  Barron,  Forbes  and  Co. 
(Gt.  Brit.)  V.  U.  S.,  May  8,  1871,  Moore's  Arb.  2525;  Yuille,  Shortridge  &  Co.  (Gt. 
Brit.)  V.  Portugal,  March  8,  1861,  La  Fontaine,  378;  Alfaya  (U.  S.)  v.  Spain,  Feb.  12, 
1871,  not  in  Moore. 

By  way  of  exception.  Great  Britain  granted  to  an  American  citizen  (Lillywhite) 
compensation  for  his  erroneous  conviction  and  imprisonment  in  New  Zealand,  to 
which  even  a  British  subject  would  not  have  been  entitled.  For.  Rel.  1901,  231-236. 
Similarly,  France  paid  a  heavy  indemnity  to  Great  Britain  for  the  erroneous  convic- 
tion and  detention  of  Mr.  Shaw,  a  British  subject,  in  Madagascar,  19  Hertslet's  Com. 
Treaties,  201-203.  See  also  Bark  Jones  (U.  S.)  v.  Great  Britain,  Feb.  8,  1853, 
Moore's  Arb.  3051,  where  an  erroneous  assessment  of  costs  was  considered  a  ground 
of  government  liability.  In  addition,  the  government  declined  to  investigate,  on 
remonstrance. 


POSITION   OF  COURTS   AND   JUDGES  107 

courts  Secretary  Marcy  denied  any  international  responsibility  of  the 
state,  although  he  admitted  a  personal  responsibility  of  the  judges.' 
Nevertheless  Prof,  de  Martens  in  the  Costa  Rica  Packet  case,^  one  of 
the  most  important  of  recent  arbitrations,  held  the  Dutch  Govern- 
ment liable  for  the  (as  he  found)  wrongful  exercise  of  jurisdiction  by  a 
Dutch  court  over  a  British  captain  on  account  of  certain  alleged  offenses 
conmiitted  beyond  the  three-mile  limit.  Notwithstanding  the  fact 
that  the  court  found  it  had  no  jurisdiction  and  acquitted  the  defendant, 
de  Martens  held  the  Netherlands  government  liable  for  having  ordered 
the  detention  and  for  certain  hardships  connected  therewith.  Few 
arbitral  awards  have  been  more  severely  criticized  than  the  decision 
in  the  Costa  Rica  Packet  case.^ 

While,  on  principle,  the  erroneous  or  merely  unjust  decision  of  a  court 
involving  no  unlawfulness  or  irregularity  in  procedure  should  not  in- 
volve the  state  in  responsibility,*  the  failure  of  the  higher  courts  to  dis- 
approve violations  of  national  or  international  law  by  minor  officials 
or  other  authorities  fixes  an  international  responsibility  upon  the  state,' 
and  a  flagrant  or  notorious  injustice  is  not  easily  distinguishable  from  a 
denial  of  justice.  Similarly,  the  judgment  of  a  court  in  violation  of  a 
treaty^  or  of  international  law  serves  to  render  the  state  responsible. 

'  Mr.  Marcy  to  Chevalier  Bertinatti,  Dec.  1,  1856,  Moore's  Dig.  VI,  748.  Contra, 
Earl  Granville  to  Mr.  Morier,  Sept.  30,  1881,  74  St.  Pap.  1172. 

^  Costa  Rica  Packet  (Gt.  Brit.)  v.  Netherlands,  May  16,  1895,  Moore's  Arb. 
4948-4954;  89  St.  Pap.  1181  et  seq.,  1284. 

*  Baty,  International  law,  197,  227-231.  See  also  the  following  articles  on  the 
case:  A.  E.  Blfe  in  28  R.  D.  I.  (1896),  452-468;  Jules  Valery  in  5  R.  G.  D.  I.  P.  (1898), 
57-66;  Gustave  Regelsperger  in  4  R.  G.  D.  I.  P.  (1897),  735-745;  Tchernoff,  op.  cit., 
290. 

*  The  earlier  writers  considered  an  unjust  judgment  a  ground  for  reprisals,  and 
equivalent  to  a  denial  of  justice.  See  citations  from  Grotius,  Bynkershoek  and  Vattel 
referred  to  by  Wheaton,  Dana's  Wheaton,  §  391.  This  view  is  approved  by  ^^^leaton 
and  Triepel,  supra,  p.  350,  note  3. 

'^  E.  g.,  many  decisions  of  prize  courts  supporting  unlawful  captures.  Dana's 
Wheaton,  §§  392,  396.  See  Kane's  notes  on  Convention  with  France  of  July  4,  1831, 
p.  31  and  unlawful  exactions  of  duties  by  Denmark  at  Kiel,  confirmed  by  Danish 
courts,  20  St.  Pap.  838,  and  Danish  indemnities  under  treaty  of  March  28,  1830, 
Dana's  WTieaton,  §  397. 

*  Van  Bokkelen  (U.  S.)  i>.  Haiti,  May  24,  1888,  Moore's  Arb.  1807,  1822;  La  Fon- 
taine, 307;  Yuille,  Shortridge  and  Co.  (Gt.  Brit.)  v.  Portugal,  March  8,  1861,  61  St. 
Pap.  841;  La  Fontaine,  377-385. 


198  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

It  is  a  fundamental  principle  that  the  acts  of  inferior  judges  or  courts 
do  not  render  the  state  internationally  Uable  when  the  claimant  has 
failed  to  exhaust  his  local  means  of  redress  by  judicial  appeal  or  other- 
wise/ for  only  the  highest  court  to  which  a  case  is  appealable  may 
be  considered  an  authority  involving  the  responsibility  of  the  state.  ^ 

The  regularity  and  legality  of  a  court's  practice  and  procedure  are 
to  be  judged  by  the  local  law,  which  need  not,  however,  manifest  the 
liberal  principles  of  Anglo-American  law.  For  example,  even  in  coun- 
tries in  which  the  inquisitorial  system  of  criminal  law  prevails,  a  fair 
application  of  the  law  to  aliens  and  citizens  alike  removes  all  ground 
of  complaint  on  the  part  of  foreign  countries,  even  of  those  adopting 
the  accusatory  system.  Provided  the  system  of  law  conforms  with 
a  reasonable  standard  of  civilized  justice  and  provided  that  it  is  fairly 
administered,  aliens  have  no  cause  for  complaint  in  the  absence  of  an 
actual  denial  of  justice.^ 

The  personal  acts  of  judges  either  in  their  private  capacity  or  so 
grossly  violative  of  their  judicial  functions  that  they  may  be  held 
personal  acts,  do  not  entail  any  liability  of  the  government.  For  their 
private  acts  they  are  liable  as  other  individuals.^  It  is  not  always 
easy  to   distinguish  personal  acts  from  wrongful  official  acts.     The 

^  Supra,  p.  191,  note  1,  and  cases  of  Blumhardt,  Burn,  Smith  and  Jennings,  there 
cited. 

2  French  indemnity  of  1831,  Moore's  Arb.  4472-73;  The  Van  Ness  Convention 
with  Spain,  Feb.  17,  18.34,  iHd.  4544. 

3  E.  g.,  in  TrumbuU  (Chile)  v.  U.  S.,  Aug.  7,  1892,  Moore's  Arb.  3255-61,  where 
claimant  was  ultimately  acquitted  of  a  charge  of  violating  the  neutrahty  laws,  it  was 
held  that  he  was  not  entitled  to  an  indemnity,  for  he  had  been  "regularly  indicted, 
tried,  and  acquitted  in  accordance  with  the  ordinary  proceedings  of  courts  of  justice, 
and  that  he  had  been  subjected  to  no  improper  treatment."  See  also  White  (Gt. 
Brit.)  V.  Peru,  award  April  13,  1864,  Moore's  Arb.  4967,  at  4968;  Ullman,  De  la 
responsabilite  de  I'Etat  en  matiere  judiciaire,  Paris,  1911  (extract  from  Lapradelle's 
and  Pohtis'  Recueil  des  arbitrages,  v.  II);  Forte  (Gt.  Brit.)  v.  Brazil,  award 
June  18,  1863,  53  St.  Pap.  150,  Moore's  Arb.  4925;  Mr.  Webster,  Sec.  of  State,  to 
the  President  in  Thrasher's  case,  2  Wharton,  613,  and  other  extracts  in  2  Wharton, 
§§  230  and  230a. 

*  Thus  the  fraud  and  corruption  of  a  municipal  judge  were  held  by  .Attorney  Gen- 
eral Akerman  in  the  Caroline  case  against  Brazil  not  to  involve  the  liability  of 
Brazil  and  the  U.  S.  returned  a  portion  of  an  indemnity  already  paid  (18  Stat.  L.  70); 
13  Op.  Atty.  Gen.  553.  See  also  Rebecca  (U.  S.)  v.  Mexico,  March  3,  1849, 
Moore's  Arb.  3008  (judge  fled  with  money  deposited  in  court). 


RESPONSIBILITY   OF   CENTRAL    GOVERNMENT  199 

latter  usually  involve  the  liability  of  the  state  if  they  are  not  remedied 
by  higher  courts  and  result  in  an  actual  injury  or  denial  of  justice  to 
aliens.  ^ 

As  in  the  case  of  minor  officials  and  even  of  individuals,  the  govern- 
ment must  assume  liability  for  such  wrongful  acts  of  its  judges  or  courts 
as  it  negligently  fails  to  prevent  or  punish,  or  against  which  judicial 
recourse  is  closed  to  the  injured  individual."  The  failure  of  adminis- 
trative authorities  to  execute  a  judgment  ^  may  be  appropriately  con- 
sidered as  a  denial  of  justice. 

RESPONSIBILITY    FOR   POLITICAL   SUBDIVISIONS   OF   THE    STATE 

§  82.  Responsibility  of  Central  Government  for  its  Constituent  Parts. 

The  question  is  often  raised  as  to  whether  the  central  government 
is  liable  for  the  breach  of  a  contract  by  one  of  its  poUtical  subdivisions 
or  for  a  tort  committed  by  an  officer  of  a  constituent  state  under  cir- 
cumstances rendering  that  state  responsible.  In  international  re- 
lations the  national  government  is  alone  responsible  for  the  proper 
safeguarding  of  the  rights  of  foreigners,  and  aliens  have  the  right  to 
look  to  the  central  government  in  the  case  of  violation  of  treaty  rights 
and  international  obligations  of  the  nation  by  its  constituent  parts.  ^ 

1  Cotesworth  and  Powell  (Gt.  Brit.)  v.  Colombia,  Dec.  14,  1872,  Moore's  Arb.  2050 
at  p.  2084,  parag.  9  (negligent  absence  of  judge  from  his  official  post).  Mr.  Seward, 
Sec'y  of  State,  to  Mr.  Webb,  Dec.  7,  1867,  2  ^\^larton,  615  (fraudulent  decision). 
In  the  case  of  Meade  v.  Spain,  Spain  acknowledged  her  liabiMty  for  the  palpable 
misconduct  of  her  judicial  tribunals.    Moore's  Arb.  3238. 

-  Jonan  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3251  (failure  of  Mexican  gov- 
ernment to  prevent  illegal  assumption  of  jurisdiction  by  its  courts,  on  remonstrance. 
It  is  presumed  government  had  the  necessary  power).  Cotesworth  and  Powell  (Gt. 
Brit.)  V.  Colombia,  Moore's  Arb.  2050,  2085  (condonation  of  illegal  act  of  judge  by 
an  amnesty  or  pardon,  thereby  also  depriving  claimant  of  all  appellate  recourse  or 
redress);  Bark  Jones  (U.  S.)  v.  Great  Britain,  Feb.  8,  1853,  Moore's  Arb.  3051 
(refusal  to  investigate  an  unjust  judgment,  but  on  the  contrary  sustaining  it  after 
remonstrance);  Holtzendorff,  Handbuch,  II,  74;  Fiore,  Dr.  int.  codifie,  §§  339,  340; 
Calvo,  I,  §  348;  Pradier-Foder6,  I,  §  402;  Bluntschh,  §  340. 

'Montano  (Peru)  v.  U.  S.,  Jan.  12,  1863,  Moore's  Arb.  1630,  1634;  Fabiani 
(France)  v.  Venezuela,  Feb.  24,  1891,  ibid.  4878,  at  p.  4907;  Polak  v.  Egypt,  3  Clunet 
(1876),  499. 

*  Oppenheim,  210;  PhilUmore,  I,  194;  Triepel,  359  et  seq.;  Anzilotti  in  13  R.  G.  D. 
I.  P.  (1906),  301  and  authorities  there  cited. 


200  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

In  the  matter  of  contracts  entered  into  with  corporate  subdivisions 
of  a  general  government  a  distinction  is  recognized,  and  it  has  been 
held  that  in  the  absence  of  a  definite  benefit  to  the  central  govern- 
ment or  other  factor  indicating  national  liability  for  the  debt,  the  general 
government  is  not  liable  for  contractual  debts  due  from  or  by  its  cities, 
villages  or  their  inhabitants.^  Especially  is  this  true  where  the  debt 
is  contracted  by  the  municipality  or  commonwealth  in  its  corporate  char- 
acter as  a  fiscus  for  distinctly  corporate  purposes.^  Where,  however, 
there  has  been  some  benefit  to  the  general  government,  or  some  control 
over  or  interest  in  the  contract  by  the  general  government,  the  latter  has 
been  held  liable  for  breach  of  the  contract  by  a  constituent  state  or 
municipality.^ 

'  Tlioinpson  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3484;  Nolan  (U.  S.)  v. 
Mexico,  ibid.  34-84;  La  Guiara  Light  and  Power  Co.  (U.  S.)  v.  Venezuela,  Feb.  17, 
1903,  Ralston,  181;  Thomson-Houston  Co.  (U.  S.)  v.  Venezuela,  ibid.  169  (dictum). 
But  see  contra  Ballistini  (France)  v.  Venezuela,  Feb.  19,  1902,  ibid.  503,  506  (no  reason 
given  for  award). 

2  Thus,  the  United  States  has  been  held  not  responsible  for  the  repudiation  of  state 
bonds  nor  a  guarantor  of  their  payment  (Schweitzer  v.  U.  S.,  21  Ct.  CI.  303),  nor  for 
the  bonds  of  a  territory,  although  the  governor  was  appointed  by  the  President  and 
Congress  failed  to  disapprove  the  issue  of  the  bonds  or  their  repudiation.  Florida 
Bond  Cases,  Gt.  Brit.  v.  U.  S.,  Feb.  8,  1853,  Moore's  Arb.  3594-3612.  Similarly,  the 
IT.  S.  is  not  liable  for  the  debts  [or  torts]  of  officers  of  a  Territory  organized  under 
Congressional  legislation.  (Mr.  Bayard  to  Mr.  West,  June  1,  1885,  For.  Rel.  1885, 
452.)  Mexico  was  held  not  liable  for  the  repudiation  by  Texas  of  a  contract  (scrip) 
representing  land  in  Texas,  that  state  having  later  seceded  from  Mexico.  Union  Land 
Co.  V.  Mexico,  March  3,  1849,  Moore's  Arb.  3448,  3451. 

3  Participation  of  the  minister  of  public  works  in  a  contract  with  a  municipal 
council  and  an  exemption  from  the  payment  of  federal  customs  duties.  Rudloff 
(U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  182,  197.  See  also  Daniel  (France)  v. 
Venezuela,  Feb.  19,  1902,  ibid.  .507,  509  and  Dominique  (France)  v.  Venezuela, 
Feb.  19,  1902,  Sen.  Doc.  533,  59th  Cong.,  1st  sess.,  207  (various  degrees  of  national 
interest  in  the  contract).  Beckman  (Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston, 
598,  599  (forced  loans — quasi-contract — exacted  by  a  constituent  state,  the  jiroceeds 
of  which  were  used  for  the  defense  of  the  entire  nation).  See  also  Baasch  and  Romer 
(Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  906  and  Bolivar  Ry.  Co.  (Gt. 
Brit.)  V.  Venezuela,  Feb.  13,  1903,  ibid.  391;  Ballistini  (France)  v.  Venezuela,  Feb.  19, 
1902,  Ralston,  503,  506  (supplies  furnished  to  a  constituent  state — no  reason  given 
for  the  award);  Metzger  (U.  S.)  v.  Haiti,  Oct.  18,  1899,  For.  Rel.  1901,  271  (central 
government  had  assumed  diplomatic  negotiations  for  settlement  of  claim  against 
municipality;  held  an  agreement  binding  on  government).  See  also  extracts  quoted 
in  Ralston's  International  arbitral  law,  §§  457-467. 


RESPONSIBILITY    OF   CENTRAL   GOVERNMENT  201 

The  international  responsibility  of  the  nation  or  central  govern- 
ment for  the  acts  of  its  political  subdivisions  or  dependencies,  such 
as  suzerain  and  vassal  states,  protectorates,  constituent  states  under 
a  real  or  personal  union,  or  federation  or  confederation  of  states  ^  de- 
pends generally  upon  the  extent  to  which  the  political  subdivision  or 
dependency  has  constitutionally  been  deprived  of  independent  inter- 
national personality.  If  the  central  authority  undertakes  by  treaty 
or  otherwise  to  represent  its  constituent  parts  m  international  affairs, 
it  must  discharge  the  resulting  obligations,  although  constitutionally 
the  fulfillment  of  many  of  these  duties  may  in  first  instance  be  dele- 
gated to  the  political  subdivisions  of  the  nation.-  Constitutional  ar- 
guments do  not  avail  to  excuse  the  non-performance  of  international 
duties,'  although  the  constitutional  inability  of  the  United  States  to 
compel  the  states  to  satisfy  the  treaty  obligations  of  the  nation  has 
often  furnished  a  controversial  ground  for  contesting  its  legal  liability.* 

The  torts  committed  against  aUens  by  oflficers  or  authorities  of  a 
political  subdivision  of  a  nation,  under  circumstances  which  would 
render  the  subdivision  responsible,  generally  bind  the  central  gov- 
ernment to  indemnify  the  injured  alien. "^    The  reason  for  this,  as  has 

'  Westlake,  I,  ch.  Ill;  Tchernoff,  188-193.  On  constituent  states  see  Donot,  Al.,  De 
la  responsabilite  de  I'etat  federal  a  raison  des  actes  des  etats  particuliers,  Paris,  1912, 
p.  100  el  seq.  On  protectorates  see  Hall,  Foreign  powers  and  jurisdiction,  §  96,  and 
Jenkins,  H.,  British  rule  and  jurisdiction,  etc.,  Oxford,  1902,  p.  175. 

-  In  a  dictum  by  Plumley,  Umpire,  in  Davy  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903, 
Ralston,  411,  a  difference  was  deduced  from  the  constitutional  character  of  the  bond 
existing  between  the  constituent  state  and  the  central  government,  in  the  fact  that 
in  the  case  of  some  countries,  e.  g.,  Venezuela,  where  the  states  are  carved  out  of  the 
national  domain  and  formed  in  accordance  with  the  national  wishes,  the  federal 
government  is  held  to  more  direct  responsibility  for  the  acts  of  its  constituent  states 
than  in  the  case  of  a  country  like  the  United  States  where  the  federal  government 
merely  has  delegated  powers,  sovereigntj^  being  reserved  in  the  separate  states. 

3  Lord  Clarendon  to  Mr.  Erskine,  April  21,  1870,  65  St.  Pap.  669,  Baty,  152  (case 
in  Greece);  Speech  of  Senator  Edmunds,  June  3,  1886,  Cong.  Record  v.  17,  part  5, 
p.  5186;  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Partridge,  March  5,  1875,  Moore's  Dig.  VI, 
816  (case  in  Brazil);  De  Brissot  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb. 
2949-2967;  Trumbull  (Chile)  t-.  U.  S.,  Aug.  7,  1892,  ibid.  3569.  See  article  by  Despag- 
net,  "Les  difficultes  venant  de  la  constitution  de  certains  pays,"  2  R.  G.  D.  I.  P. 
(1895),  181  el  seq. 

*  Generally  without  success.    See  infra,  §  91. 

'  Little,  Commissioner  in  De  Brissot  and  Rawdon  case  (U.  S.)  v.  Venezuela,  Dec.  5, 


202  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

already  been  observed,  is  that  the  state  is  a  unit  in  its  international 
relations;  and  in  view  of  the  inability  of  a  constituent  political  sub- 
division of  the  state  to  commit  an  international  delinquency  on  its  own 
responsibiUty  alone,  the  parent  government  is  bound  to  answer  for  it.^ 

§  83.  Succession  of  States  and  Apportionment  of  Debts. 

The  matters  connected  with  the  distribution  of  public  obligations  in 
the  case  of  the  division  of  a  state  into  distinct  states,  or  the  cession  of  a 
portion  of  one  state  to  another  have  engaged  the  attention  of  nu- 
merous writers  without  having  led  to  any  definite  conclusion  except  that 
no  universal  rule  of  international  law  on  the  subject  can  be  said  to  exist.^ 

1885,  Moore's  Arb.  2949,  2967;  Davy  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston, 
411;  Torreny  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  162  (local  police  officer); 
Jones  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  3019  (illegal  detention  of  vessel 
by  governor  of  a  state) ;  Montijo  (U.  S.)  v.  Colombia,  Aug.  17,  1874,  Moore's  Arb. 
1421,  1443;  Dominique  (France)  v.  Venezuela,  Feb.  19,  1902,  Sen.  Doc.  533,  59th 
Cong.,  1st  sess.,  206  (municipality).  See  also  Knapp  and  Reynolds  claims,  Moore's 
Dig.  VI,  800  (connivance  of  local  authorities  in  brigandage). 

^  It  is  on  this  theory  that  the  United  States  has  on  several  occasions  felt  itself 
constrained  to  award  indemnities  to  aliens  injured  under  circumstances  rendering  the 
states  responsible  for  the  injury.  Foreign  governments  are  not  compelled  to  look 
to  the  constituent  states  for  the  vindication  of  the  treaty  rights  of  their  nationals, 
and  the  inability  of  the  federal  government  to  compel  the  states  to  observe  these 
rights  or  make  reparation  for  their  violation  lays  the  foundation  for  the  liability  of 
the  United  States.  Presidents  Harrison,  McKinley,  Roosevelt  and  Taft  and  the 
authors  of  numerous  bills  introduced  in  Congress  to  give  the  federal  courts  jurisdic- 
tion over  offenses  against  aliens,  considered  the  police  and  judiciary  of  the  state  in 
such  cases  as  federal  agents.  See  infra,  p.  226  (mob  violence)  and  footnote  1.  In 
this  respect,  the  constitutional  inability  operates  in  the  same  way  as  a  negligent  fail- 
ure to  bring  local  officers  to  justice.    De  Brissot  and  Davy  cases,  footnote  1,  supra. 

If  local  officers  depend  for  their  authority  on  the  central  government,  they  may  be 
considered  government  agents.  Baasch  and  Romer  (Netherlands)  v.  Venezuela, 
Feb.  28,  1903,  Ralston,  906. 

2  The  details  of  this  exceedingly  interesting  subject,  which  may  become  of  renewed 
importance  at  the  conclusion  of  the  present  European  War,  can  hardly  be  discussed 
here.  It  is  a  very  complicated  subject,  and  precedents  depend  so  largely  upon  the 
.s{)ecial  facts  and  circumstances  of  each  case,  that  conclusions  of  principle  are  not 
easily  dcducible.  The  ablest  discussions  of  the  subject,  involving  the  transmission 
and  divisibility  of  obligations  arising  out  of  public  debts,  general  and  local,  and  out 
of  contracts  and  concessions  will  be  found  in  Westlake,  I,  58  et  seq.;  Keith,  Arthur  B. 
The  theory  of  state  succession,  London,  1907,  ch.  VIII;  Huber,  Max,  Die  Staaten- 
succession,  Leipzig,  1898,  §  125  et  seq.;  Schonborn,  W.,  Staatensuccessionen,  in 
Handbuch  des  Volkerrechts,  II,  2,  Stuttgart,  1913,  pp.  55-60,  80-84,  96-109,  113, 


SUCCESSION    OF   STATES   AND    APPORTIONMENT   OF   DEBTS  203 

As  a  general  rule,  however,  it  may  be  said  that  the  state,  through  all 
changing  forms  of  government,^  is  responsible  for  the  debts  of  its  titu- 
lar government  and  even  of  general  de  facto  governments.  Public 
debts  are  not  extinguished  by  the  division  of  a  state  into  distinct  states, 
whether  by  war  or  by  mutual  consent.^  According  to  the  weight  of 
authority  among  international  law  writers,  however,  there  appears 
to  be  no  legal  obligation  on  the  part  of  a  seceding  province  or  on  the  part 
of  a  country  taking  over  a  certain  portion  of  territory  from  another 
country  to  assume  some  share  of  the  national  debt  when  the  identity  of 
the  parent  state  is  maintained.^  They  recognize,  however,  a  moral  ob- 
ligation to  assume  a  proportionate  share  of  the  general  debt  of  the 
parent  government  which  has  been  incurred  for  the  benefit  of  the  entire 
country.'*  Many  of  the  continental  writers  supported  by  the  evidence  of 
numerous  treaties,  erect  the  moral  obligation  into  a  legal  one,  whereas 
the  Anglo-American  pubhcists — possibly  influenced  by  the  fact  that 
their  countries  have  been  annexing  and  conquering  countries — and  in 
turn  supported  by  various  treaties,  such  as  the  treaties  following 
the  Franco-Prussian  War  of  1871  and  the  Spanish- American  War 
of  1898,  and  the  treaties  of  cession  of  Louisiana,  Florida,  New  Mex- 
ico and  California,  assert  vigorously  the  merely  moral  character  of  the 
obligation.  Moreover,  no  uniform  rule  for  the  apportionment  of  the 
debt  has  ever  been  agreed  upon,^  a  further  evidence  of  the  non-legal 

117-118;  Appleton,  H.,  Des  effets  des  annexions  de  territoires  sur  les  dettes,  etc., 
Paris,  1894  (part  2  of  a  doctoral  dissertation);  and  Cavaglieri,  Arrigo,  La  dottrina 
della  successione  de  stato  a  stato,  etc.,  Pisa,  1910,  ch.  II,  §  11,  p.  89  et  seq.;  see  also 
Moore's  Dig.  I,  §  96  et  seq. 

'  Westlake,  I,  58;  Oppenheim,  I,  122;  Halleck,  I,  96.  See  also  Zouche,  Briefly 's 
trans.,  §  66,  in  which  Aristotle's  contrary  view  is  cited.  The  rule  of  the  text,  which 
was  favored  by  Grotius,  II,  9,  §  3,  is  now  uniformly  adopted.  Moore's  Dig.  I,  249 
et  seq.;  Bolivar  Ry.  Co.  (Gt.  Brit.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  394;  Neapol- 
itan Indemnity,  convention  of  October  14,  1832,  Moore's  Arb.  4579.  For  de  facto 
governments  see  infra,  p. 

The  U.  S.,  as  a  military  occupant,  however,  was  not  liable  for  the  debts  of  Cuba. 
Griggs,  Atty.  Gen.,  22  Op.  Atty.  Gen.  384. 

^  Hall,  91,  92.  Case  of  the  ship  Tarquin  (U.  S.)  v.  Brazilian  Indemnity,  Jan.  24, 
1849,  Moore's  Arb.  4617. 

*  Hall,  92;  Oppenheim,  129,  and  authorities  cited;  Magoon's  Reports,  189,  190. 

*  Oppenheim,  130,  131;  Hall,  92;  Keith,  op.  cit.,  60  et  seq.,  and  authorities  cited. 

*  See  different  principles  set  forth  by  Huber,  op.  cit.,  §  134. 


204  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

character  of  the  obhgation.  In  the  case  of  a  debt  raised  for  the  pur- 
poses of  the  ceded  territory  or  charged  upon  its  local  revenues,  it  is  held 
by  the  majority  of  writers,  who  cite  numerous  treaties  in  support, 
that  the  obUgation  passes  with  the  land  to  its  new  owners.^  While 
reason  and  authority  favor  this  rule,  it  is  not  altogether  certain  that 
the  annexing  state  contracts  a  legal  obligation  to  pay  the  debts  se- 
cured upon  local  revenues,  and  it  is  fair  to  conclude  that  it  is  not  bound 
to  pay  war  debts  contracted  by  the  conquered  state  or  province  for  the 
very  purpose  of  resisting  conquest  and  annexation.  Nor  is  a  new  in- 
dependent state  split  off  from  a  parent  state  legally  obliged  to  assume 
any  share  of  the  debts  of  the  parent  state,  although  some  of  them  may 
have  been  incurred  in  its  special  behalf.  Thus,  the  American  colonies 
in  1783  assumed  no  part  of  the  general  debt  of  Great  Britain;  on  the 
other  hand,  the  Spanish-American  colonies  practically  all  undertook  to 
pay  a  portion  of  the  debt  of  Spain. ^ 

According  to  strict  principles  of  international  law,  the  parent  state 
which  has  lost  a  province  by  conquest  or  cession,  remains  Hable  for  all 
but  local  debts  of  the  transferred  province  contracted  for  local  purposes. 
On  equitable  grounds,  a  reduction  of  the  debt  has,  at  times,  been  allowed 
by  creditor  governments,  especially  when  the  debt  was  incurred  through 
the  separated  province.^  Where  the  identity  of  the  parent  state  is 
destroyed,  the  conquering  or  annexing  power  or  the  new  state  becomes 

1  This  was  one  of  the  contentions  in  the  Hodgskin  and  Landreau  claims  v.  Chile 
both  diplomatically  and  before  the  arbitral  tribunal  under  convention  of  Aug.  7, 
1892.  The  right  of  claimants  to  certain  guano  deposits  in  Peru  was  in  question.  It 
was  contended  that  the  obligation  of  Peru  passed  to  Chile  on  the  cession  of  the  guano 
territory.  The  Tribunal  (Goode,  U.  S.  commissioner,  dissenting)  held  that  the  claim 
was  personal  only  against  Peru,  and  did  not  pass  with  the  land.  Moore's  Arb.  3571- 
.'^590.  In  the  diplomatic  correspondence,  the  U.  S.  seems  to  have  contended  that 
the  satisfaction  of  the  Peruvian  obligations,  pledged  upon  the  transferred  guano 
deposits,  was  a  moral  obligation  of  Chile.  This  is  the  better  view,  but  Wcstlake  (I, 
(i3,  1st  ed.)  believes  the  obligation  to  have  been  legal.  Westlake  here  adopts  the 
view  of  the  continental  writers.  See  Keith,  op.  cit.,  60,  63.  See  claims  of  Franco  v. 
Chile,  July  23,  1892  (Award,  July  5,  1901),  Dcscamps  &  Renault,  Rec.  int.  d.'s 
trait^s  du  xx*  sif^cle,  1901,  p.  188  et  seq.  In  support  of  the  text,  see  also  Hall,  92. 
Magoon's  Reports,  178,  189.    See  extracts  in  Moore's  Dig.  I,  339  et  seq. 

2  Moore's  Dig.  I,  342-343. 

'  Claim  of  Chilean  S.  S.  Lnutnrdo  v.  Colombia,  reduced  by  a  third  after  secession 
of  Panama,  which  had  been  responsible  for  the  original  wrong.    For.  Rel.  1907,  I,  293. 


DE    FACTO    GOVERNMENTS  205 

heir  to  the  debts  of  the  destroyed  country.^  The  ceded  or  seceding 
territory,  however,  is  hable  for  local  debts,-  although,  as  observed,  there 
is  much  difficulty  in  establishing  what  is  a  local  debt.  It  has  been  noted 
that  a  general  debt,  even  when  made  a  lien  upon  local  revenues,  is 
not  a  local  debt  and  an  obligation  in  rem.  A  local  debt  is  one  incurred 
only  for  strictly  local  purposes,  and  is  the  only  one  which  carries  to  the 
annexing  state  or  new  state  created,  a  legal  obligation  to  pay.  It  is 
important  in  all  cases  to  establish  whether  the  debt  has  been  contracted 
for  local  or  for  national  purposes.^ 

It  is  stated  by  practically  all  the  authorities  that  the  annexing  state 
becomes  liable  for  all  the  concessions  and  contracts  of  the  annexed 
state.  For  this  view,  they  find  support  in  numerous  treaties  and  court 
decisions.  Nevertheless,  the  fact  that  bankrupt  states  could  thus 
impose  enormous  obligations  on  their  successors,  and  that  war  debts 
would  thus  legally  have  to  be  paid,  weakens  to  such  an  extent  the  force 
of  the  contention,  that  it  may  with  justice  be  said  that  the  successor 
is  bound  to  satisfy  only  such  contractual  and  other  obhgations  of  the 
annexed  state  as  appeal  to  him  as  fair  and  reasonable,  equitable  con- 
siderations, however,  dictating  the  maintenance  of  all  obligations  not 
founded  in  fraud  or  against  the  public  interest.^ 

DE    FACTO    GOVERNMENTS 

§  84.  Different  Kinds.    Transmission  of  Obligations. 

The  internal  political  changes  which  a  state  may  undergo  do  not 
affect  its  international  personahty.  In  the  rapid  change  of  govern- 
ment to  which  some  states  have  been  subject,  certain  parties  have 
secured  control  and  exercised  the  powers  of  government,  without 
compliance  with  constitutional  or  strictly  regular  forms.  This  control 
may  extend  over  the  entire  nation  or  over  certain  parts  only.  It  be- 
comes important  then  to  determine  w^hen  such  control  of  the  adminis- 
tration may  be  said  to  have  become  a  de  facto  government,  and  to 

'  Oppenheim,  129;  Hall,  99;  Halleck,  98;  Dana's  Wheaton,  note  18. 
2  Oppenheim,  131;  Hall,  92;  23  Op.  Atty.  Gen.  187. 

'  Magoon's  Rep.  190;  23  Op.  Atty.  Gen.  187.  The  authorities  are  unsatisfactory 
on  many  of  the  points  here  discussed.    See  footnote  in  Hall,  93-94. 

*  The  ablest  discussion  of  this  matter  has  been  found  in  Keith,  op.  cit.,  66-72. 


206  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

what  extent  the  acts  of  such  a  provisional  government  are  binding 
upon  the  nation.^ 

It  is  necessary  first  to  distinguish  between  the  powers  of  a  de  facto 
government  which  has  displaced  the  de  jure  government  within  the 
whole  or  practically  the  whole  nation,  as,  e.  g.,  the  government  of 
Cromwell,  of  Napoleon  I,  and  of  the  Republic  of  1848  in  France,  and 
a  de  facto  government  which  controls  only  a  limited  portion  of  the 
national  territory,  as  the  Confederate  government  did  in  the  United 
States.  The  former  may  be  called  a  "general"  de  facto  government, 
which  resembles  closely  a  lawful  government,  and  the  latter,  a  ''local" 
de  facto  government  or  government  of  paramount  force.  The  legal  con- 
sequences of  this  distinction  are  important. - 

A  general  government  de  facto,  having  completely  taken  the  place 
of  the  regularly  constituted  authorities  in  the  state,  binds  the  nation. 
So  far  as  its  international  obligations  are  concerned,  it  represents  the 
state.  It  succeeds  to  the  debts  of  the  regular  government  it  has  dis- 
placed, and  transmits  its  own  obligations  to  succeeding  titular  govern- 
ments.^ Its  loans  and  contracts  bind  the  state,  and  the  state  is  respon- 
sible for  the  governmental  acts  of  the  de  facto  authorities.  In  general, 
its  treaties  are  vaUd  obligations  of  the  state.  It  may  alienate  the 
national  territory,  and  the  judgments  of  its  courts  are  admitted  to  be 
effective  after  its  authority  has  ceased.  An  exception  to  these  rules 
has  occasionally  been  noted  in  the  practice  of  some  of  the  states  of 
Latin-America,  which  declare  null  and  void  the  acts  of  a  usurping 

'  Rougier,  A.,  Les  guerres  civiles  et  le  droit  des  gens,  Paris,  1903,  481  et  seq.;  Wiesse, 
C,  Le  droit  international  applique  aux  guerres  civiles,  Lausanne,  1898,  235  el  seq. 
If  the  de  jure  successor  of  such  a  de  facto  government  is  the  government  the  latter 
has  itself  displaced,  it  is  then  known  as  the  "intermediary"  government.  See  also 
Moore's  Dig.  I,  41  et  seq.;  Ralston,  International  arbitral  law,  §§  430,  448-456;  and 
Gaudu,  Raymond,  Essai  sur  la  legitimite  des  gouvernements  dans  ses  rapports  avec 
les  gouvernements  de  fait,  Paris,  1914. 

2  Williams  v.  Bruffy,  96  U.  S.  176,  186;  Thorington  v.  Smith,  8  Wall.  1,  8-10. 

3  The  Neapolitan  Indemnity  Oct.  14,  1832,  Moore's  Arb.  4575-4589.  (Two 
Sicilies  admitted  liability  for  acts  of  Murat's  government.)  Treaty  of  July  4,  1831 
between  U.  S.  and  France  admitted  liability  of  France  for  acts  committed  during  the 
Empire.  See  Wiesse,  op.  cit.,  246;  Miller  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's 
Arb.  2974;  Republic  of  Peru  v.  Dreyfus,  L.  R.  38  Chancery  Div.  348,  and  particularly 
decision  of  Franco-Chilean  Tribunal  of  Arbitration  in  Lausanne,  1901,  in  claim  of 
Dreyfus  Bros,  Descamps  and  Renault,  Rec  int.,  etc.,  1901,  3%-398. 


DE    FACTO    GOVERNMENTS  207 

de  facto  intermediary  government  when  the  regular  government  it 
has  displaced  succeeds  in  restoring  its  control.^  Nevertheless,  acts 
validly  undertaken  in  the  name  of  the  state  and  having  an  international 
character  cannot  lightly  be  repudiated,  and  foreign  governments 
generally  insist  on  their  binding  force. ^  The  legality  or  constitutional 
legitimacy  of  a  de  facto  government  is  without  importance  internation- 
ally so  far  as  the  matter  of  representing  the  state  is  concerned.^ 

The  responsibility  of  the  state  for  the  acts  of  a  local  de  facto  govern- 
ment involves  more  delicate  questions.  Such  a  local  government  de 
facto  may  be  maintained  by  military  force  within  a  portion  of  a  larger 
territory,  either  as  an  enemy  making  war  against  the  invaded  nation — 
a  military  occupant — or  as  a  revolutionary  organization  resisting 
the  authority  of  the  legitimate  government  or  of  other  factions  con- 
tending for  national  control.  The  power  of  such  a  de  facto  government 
to  involve  the  responsibility  of  the  state  depends  largely  upon  its 
ultimate  success,  so  that  most  of  its  international  acts,  e.  g.,  treaties, 
etc.,  are  affected  with  a  suspensive  condition.  Nevertheless,  even  if 
it  fails,  definite  executed  results  follow  from  its  merely  temporary 
possession  of  administrative  control  within  a  defined  area.  These 
may  be  considered  briefly. 

A  temporary  occupant  or  local  de  facto  government  carries  on  the 
functions  of  government,  supported  usually  directly  or  indirectly  by 
military  force.  ^  It  may  appoint  all  necessary  officers  and  designate 
their  powers,  may  prescribe  the  revenues  to  be  paid  and  collect  them, 

1  Wiesse,  op.  cil.,  244  et  seq.  We  cannot  enter  into  any  detailed  discussion  of  the 
various  kinds  of  governmental  acts  which  survive  the  downfall  of  a  usurping  de  facto 
government.  This  is  largely  a  question  of  constitutional  law.  Pradier-Fodere,  I, 
§  134. 

*  Thus  Peru,  notwithstanding  art.  10  of  its  Constitution  and  its  law  of  1886,  declar- 
ing void  the  acts  of  the  usurper  Picrola,  was  held  liable  on  contracts  which  he  had 
made.  Dreyfus  (France)  v.  Chile,  July  23,  1892  (award  July  5,  1901),  Descamps 
and  Renault,  Rec.  int.,  etc.  1901,  396-398. 

'Bluntschh,  §§44,  45,  120;  Iloltzendorff,  II,  §21;  Pradier-Fodere,  §§134,  149; 
Rivier,  II,  131,  440;  Rougier,  481;  Dreyfus  (France)  v.  Chile,  Franco-Chilean  Arbitra- 
tion, Lausanne,  p.  290,  and  authorities  there  cited,  and  Gaudu,  op.  cit. 

*  Moore's  Dig.  I,  45  el  seq.;  VII,  257  et  seq.;  2  Op.  Atty.  Gen.  321;  9  ibid.  140; 
Magoon's  Reports,  II  et  seq.;  Hall,  part  3,  chap.  IV;  Oppenheim,  204  et  seq.;  Bordwell, 
P.,  Law  of  war,  Chicago,  1908,  ch.  VIII  and  IX;  Spaight,  J.  M.,  War  rights  on  land. 
London,  1911,  ch.  XI  and  XII. 


208  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

and  may  administer  justice.^  Foreigners  must  perforce  submit  to 
the  power  which  thus  exercises  jurisdiction,  and  a  subsequent  de  jure 
government  cannot  expose  them  to  penalties  for  acts  which  were 
lawful  and  enforced  by  the  de  facto  government  when  done.  The 
temporary  de  facto  government  may  legislate  on  all  matters  of  local 
concern,  and  in  so  far  as  such  legislation  is  not  hostile  to  the  subsequent 
de  jure  government  which  displaces  it,  its  laws  will  be  upheld.^  A 
military  occupant  as  a  general  rule  is  forbidden  to  vary  or  suspend 
laws  affecting  property  and  private  personal  relations  or  which  regulate 
the  moral  order  of  the  community.  If  he  does,  his  acts  in  so  doing 
cease  to  have  legal  effect  when  the  occupation  ceases.  Political  and 
administrative  laws  are  subject  to  suspension  or  modification  in  case 
of  necessity.'^ 

The  collection  of  taxes  and  customs  duties  within  the  territory  and 
during  the  period  of  occupancy  or  of  the  local  de  facto  government 
relieves  merchants  and  taxpayers  from  the  obligation  of  a  subsequent 
second  payment,  upon  the  same  goods,  to  the  succeeding  de  jure  govern- 
ment.^ Such  a  temporary  government  may  levy  contributions  on 
the  inhabitants  for  the  purposes  of  carrying  on  the  war,  but  they  must 
not  savor  of  confiscation.  It  may  seize  property  belonging  to  the  state 
and  may  use  it.  It  may  receive  money  due  the  state  and  give  receipts 
in  the  name  of  the  state.  ^  This  appUes  only  to  debts  payable  within 
the  territory  and  period  of  occupancy. 

Debts  due  hj  the  state  cannot  be  confiscated  or  the  interest  seques- 
trated by  a  temporary  occupant,®  and  private  property  must  be  re- 
spected.    The  occupant  or  local  de  fado  government  cannot  alienate 

'  The  German  legislation  for  the  occupied  territories  of  Belgium  has  been  collected 
and  edited  by  C.  H,  Huberich  and  A.  Nicol-Speyer.  The  Hague,  Nyhoff,  1915. 
108  p. 

2  BrufTy  v.  WilUams,  96  U.  S.  176,  185;  U.  S.  v.  Home  Ins.  Co.,  22  Wall.  99;  Sprott 
V.  U.  S.,  20  Wall.  459,  464.  But  the  de  jure  government  which  ousts  a  usurping  de 
facto  government  (e.  g.,  the  Confederates)  may  disregard  all  its  acts  which  contributed 
to  its  support,  except  that  it  cannot  collect  taxes  and  duties  a  second  time. 

3  Hall,  475-476. 

*  U.  S.  V.  Rice,  4  Wheaton,  246;  Mazatlan  and  Bluefields  cases,  Moore's  Dig.  I, 
49  el  seq.;  Cases  in  U.  S.  Civil  War  and  in  Colombia,  ibid.  VI,  995-996.  Message  of 
the  President,  For.  Rel.  1900,  xxiv;  MacLeod  v.  U.  S.  (1913),  229  U.  S.  416,  429. 

*  Magoon's  Reports,  261,  citing  Phillimore  and  Halleck. 

'  Moore's  Dig.  VII,  306  and  authorities  cited  in  note,  p.  308. 


DE    FACTO    GOVERNMENTS  209 

any  portion  of  the  public  domain.'  The  fruits  thereof  may  be  sold, 
but  only  that  part  accruing  during  the  period  of  occupancy.^  A  local 
de  facto  government  may  become  the  owner  of  movables,  which  it 
may  sell  and  hypothecate.  A  succeeding  government  takes  such 
mortgaged  property  as  rightful  owner,  subject  to  the  liens  thus  created 
in  good  faith.'^  As  a  general  rule,  however,  a  succeeding  de  jure  govern- 
ment is  not  liable  for  debts  contracted  by  a  displaced  local  de  facto 
government.'' 

A  person  dealing  with  a  local  de  facto  government  assumes  the  risk 
of  his  enterprise.  The  de  facto  government  may  issue  paper  money, 
and  private  contracts  stipulating  for  payment  in  such  money  will 
be  enforced  in  the  courts  of  the  succeeding  de  jure  government.''  Under 
compulsion,  a  government  has  at  times  admitted  liability  for  the 
wrongful  acts  of  previous  local  de  facto  governments.® 

Having  in  a  general  way  described  the  differences  between  a  general 
and  a  local  de  facto  government  and  their  power  to  transmit  responsi- 
biUty,  it  is  now  necessary  to  examine  the  criteria  of  a  de  facto  govern- 
ment, and  the  legal  results  of  one  of  them  in  particular,  namely,  recog- 
nition by  the  claimant's  own  government. 

^Coffee  V.  Groover,  123  U.  S.  1;  Georgiana  and  Lizzie  Thompson  (U.  S.)  v. 
Peru,  Moore's  Arb.  1595,  4785;  Munford  v.  Wardwell,  6  Wall.  423,  425. 

2  Georgiana  and  Lizzie  Thompson  claim  (U.  S.)  v.  Peru,  supra.  Art.  55  of  the 
Hague  Regulations  provides  that  a  military  occupant  shall  be  regarded  as  the 
administrator  and  usufructuary  of  the  public  buildings  of  the  state.  See  Maccas, 
Salonique  occupee  et  administree  par  les  Grecs,  20  D.  I.  R.  G.  P.  (1913),  207-242. 

3  U.  S.  V.  Prioleau  (1865),  35  Law  Jour.  Chancery  Rep.  N.  S.,  7;  U.  S.  v.  McRae 
(1869),  L.  R.  8  Equity,  69;  Hallett  v.  The  King  of  Spain,  1  Dow  and  CI.  169;  The 
King  of  the  Two  Sicilies  v.  Wilcox,  1  Sim  N.  S.  332.  But  see  Barrett  (Gt.  Brit.)  v. 
U.  S.,  May  8,  1871,  Hale's  Rep.  153,  Moore's  Arb.  2900,  where  it  was  held  that  Con- 
federate cotton,  seized  by  the  U.  S.,  was  not  subject  to  a  lien  created  by  contract  be- 
tween claimant  and  the  Confederate  states. 

*  Don  Miguel  loan  of  1832  was  not  binding  on  Portugal.    Rougier,  523. 

*  Thorington  v.  Smith  (1868),  8  Wall.  1,  9  (contract  made  on  a  sale  of  property,  and 
not  in  aid  of  the  rebellion);  Hanauer  v.  Woodruff,  15  Wall.  439,  448.  As  to  the  gen- 
eral effect  of  the  acts  of  the  Confederate  government,  see  Baldy  v.  Hunter,  171  U.  S. 
388,  400. 

*  E.  g.,  Lord  J.  Russell  made  his  recognition  of  the  Juarez  government  in  Mexico 
conditional  upon  the  admission  of  responsibility  for  the  acts  of  the  Miramon  and 
Zuloaga  governments.  Lord  J.  Russell  to  Sir  C.  Wyke,  March  30,  1861,  52  St.  Pap. 
237,  Moore's  Arb.  2906. 


210  THE  DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

§  85.  Criteria  of  De  Facto  Government.    Efifect  of  Recognition. 

The  existence  of  a  de  facto  government  is  a  question  of  fact.  Tests 
in  establishment  of  this  fact  are  the  possession  of  supreme  power  in 
the  district  or  country  over  which  its  jurisdiction  extends,'  the  acknowl- 
edgment of  its  authority  by  the  people  or  the  bulk  of  them  by  their 
rendering  it  habitual  obedience  "from  fear  or  favor,"  ^  and  finally 
the  recognition  of  the  government  as  de  facto  by  foreign  governments.^ 
While  each  of  these  tests  is  persuasive,  none  of  them  alone  is  conclu- 
sive, except  as  recognition  or  failure  to  recognize  by  the  claimant's 
own  state  may  operate  as  an  estoppel. 

In  municipal  courts,  recognition  in  fact  by  the  political  department 
of  the  government  is  essential  to  judicial  notice  of  the  de  facto  character 
of  a  foreign  provisional  government.^  In  one  case  at  least,  it  has  been 
held  that  such  act  or  failure  to  act  by  the  government  was  not  binding 
on  an  international  tribunal.^  The  burden  of  proving  that  a  particular 
government  is  a  government  de  facto  rendering  the  nation  responsible 
falls  upon  the  claimant.^  It  has  been  held  in  several  cases  that  recogni- 
tion, while  important  as  evidence,  does  not  create  a  de  facto  govern- 
ment,^ nor  is  such  recognition  conclusive  of  its  existence  in  fact.  The 
failure  of  the  United  States,   however,   to  recognize  certain  foreign 

1  Mauran  v.  Insurance  Co.,  6  Wall.  1;  Nesbitt  v.  Lushington,  4  Terra.  763. 

2  Opinion  of  Wadsworth,  Commissioner  in  McKenny  (U.  S.)  v.  Mexico,  July  4, 
1868,  Moore's  Arb.  2882.  But  a  local  de  facto  government  generally  controls  by 
force  and  not  favor.  See  also  U.  S.  ?;.  Price,  4  Wheat.  253,  and  citations  from  Austin 
and  Halleck  in  the  case  of  Day  and  Garrison  (U.  S.)  v.  Venezuela,  Dec.  5,  1885, 
Moore's  Arb.  3553-54  and  Henriquez  (Netherlands)  v.  Venezuela,  Feb.  28,  1903, 
Ralston,  899.  See  also  Janson  (sic  in  original)  v.  Mexico,  July  4,  1868,  Moore's 
Arl).  2902,  29.30  and  dictum  by  Wadsworth  in  Cucullu  (U.  S.)  v.  Mexico,  ibid.  2877. 

3  Thorington  v.  Smith,  8  Wall.  1,  9. 

*  City  of  Berne  v.  Bank  of  England,  9  Vesey,  347;  The  Manilla,  1  Edw.  Adm.  1; 
Rose  V.  Himely,  4  Cranch,  241;  Gelston  v.  Hoyt,  3  Wheat.  246,  324;  U.  S.  v.  Palmer, 
3  Wheat.  644. 

*  Jarvis  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  150.  See  also  Day  and  Gar- 
rison (U.  S.)  V.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3560  (although  it  was  consid- 
er(!d  an  important  element  in  arriving  at  the  fact). 

*  Day  and  Garrison  (U.  S.)  v.  Venezuela,  supra. 

'Cucullu  (U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  2873,  2877;  McKenny 
(U.  S.)  i*.  Mexico,  ibid.  2883  (recognition  of  Zuloaga  government  in  Mexico  by  U.  S. 
Minister  and  other  foreign  ministers  held  not  to  establish  its  de  facto  character  as  a 
fact);  Jarvis  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  150. 


CRITERIA    OF   DE    FACTO    GOVERNMENT  211 

governments  as  de  facto,  has  been  held  binding  upon  its  own  citizens 
and  to  estop  them  from  assorting  rights  based  upon  the  de  facto  charac- 
ter of  the  government  in  question.  ^  It  will  be  noticed  hereafter  {infra, 
p.  235)  that  the  recognition  of  the  belligerent  character  of  a  revolu- 
tionary movement  releases  the  legitimate  government  from  liability 
to  the  subjects  of  the  recognizing  power  for  the  acts  of  the  revolution- 
ists. 

While  international  commissions  have  held  almost  uniformly  that 
only  a  general  de  facto  government  can  involve  the  responsibility  of 
the  state,-  it  was  held  in  one  case,'^  which  has  been  sharply  criticized  ■* 

'  Jarvis  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  150  (the  Paez  Government  in 
Venezuela);  Janson  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2902  (the  Maxi- 
milian government  in  Mexico);  Schultz  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2973 
(recognition  of  Juarez  government  by  U.  S.  estopped  claimant  from  asserting  Mira- 
mon  government  as  the  de  facto  government  of  Mexico. 

A  question  has  been  raised  whether  the  acts  of  the  Huerta  government  in  Mexico 
are  binding  on  Mexico,  and  hence  upon  the  Carranza  or  other  government  which 
may  ultimately  be  established.  Huerta's  government  having  been  at  least  a  general 
de  facto  government — it  was  indeed  recognized  as  the  de  jure  government  by  various 
European  powers — its  acts  normally  bind  the  nation.  But  the  further  question  arises 
whether  a  declaration  of  the  President  of  the  United  vStates  to  the  effect  that  "he 
will  not  recognize  as  legal  or  binding  anything  done  by  Huerta  since  he  became  Dic- 
tator," i.  e.,  subsequent  to  Huerta's  dissolution  of  the  Mexican  Congress  and  the 
arrest  of  certain  deputies,  October  10,  1913,  has  any  effect  upon  the  international 
obligations  of  Mexico,  or  operates  as  an  estoppel  upon  citizens  of  the  U.  S.  to  whom 
Huerta's  government  incurred  obligations  subsequent  to  October  10,  1913.  As 
against  foreign  governments,  it  would  seem  that  the  alleged  statement  of  the  Presi- 
dent does  not  alter  the  obligations  of  the  Mexican  nation  under  general  principles  of 
international  law.  As  regards  citizens  of  the  U.  S.,  it  is  verj'  doubtful  whether  Mexico 
can  avail  itself  of  any  such  declaration  to  escape  obligations  properly  incurred  and 
due  by  the  nation  or  its  authorities  under  recognized  principles.  On  Mexican  loans, 
see  note  by  Thomas  Baty  in  39  Law  Mag.  &  Rev.  (1914),  470. 

^  Day  and  Garrison  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3548,  3553 
{dictum);  Henriquez  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  889. 

The  acts  of  local  de  facto  government  were  held  not  to  bind  the  state  in  Georgiana 
and  Lizzie  Thompson  (U.  S.)  v.  Peru  (supra),  and  in  the  Don  Miguel  loan. 

Agam,  e.  g.,  Mexico  was  held  not  responsible  for  the  acts  of  the  Maximilian  govern- 
ment: Janson  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2902;  Stiickle,  ibid. 
2935;  Baxter,  ibid.  2934.  Nor  for  those  of  the  Zuloaga  and  Miramon  governments: 
Cucullu,  ibid.  2873;  McKenny,  ibid.  2881  and  cases  cited  p.  2885.  Nor  U.  S.  for 
acts  of  the  Confederate  states,  Prats  (Mexico)  i'.  U.  S.,  ibid.  2886. 

=•  Baldwin  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  2859-2866,  where  the 

*  Lapradelle  and  Politis,  Recueil  des  arbitrages,  I,  466-467. 


212  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS    ABROAD 

that  the  state  was  responsible  for  the  wrongful  acts  of  a  local  de  facto 
government. 

wrongful  acts  of  a  "junta"  established  for  six  months  in  a  state  of  Mexico  were  held 
to  render  Mexico  responsible. 

See  also  Central  and  South  American  Telegraph  Co.  (U.  S.)  v.  Chile,  Aug.  7,  1892, 
Moore's  Arb.  2938,  2942  (where  a  local  de  facto  government  was  held  entitled  to  take 
advantage  of  a  concession  permitting  the  "government"  to  suspend  a  cable  service). 


1 


CHAPTER  V 

INTERNATIONAL   RESPONSIBILITY   OF  THE  STATE— Con- 
tinued.    ACTS  OF  INDIVIDUALS 

§  86.  Obligations  of  the  Government. 

Private  individuals  are  in  no  sense  authorities  of  the  state.  For 
this  reason,  their  acts  do  not  involve  the  international  responsibility 
of  the  state  unless  the  latter  by  some  independent  delinquency  of  its 
own  may  be  charged  with  a  violation  of  its  international  obligations. 
The  first  of  these  obligations  in  so  far  as  it  affects  the  present  subject 
is  to  furnish  legislative,  administrative  and  judicial  machinery  which 
normally  would  protect  the  aUen  against  injuries  to  his  person  or  prop- 
erty by  private  individuals.^  This  does  not  mean  that  the  governmental 
machinery  of  the  state  must  be  so  efficient  as  to  prevent  all  injury  to 
aUens — for  this  would  make  of  the  state  a  guarantor  of  the  security 
of  aliens — but  simply  that  its  legislation,  its  police,  and  its  courts, 
whatever  the  form  of  government,  must  be  so  organized  that  a  violent 
act  by  one  private  individual  upon  another  is  only  a  fortuitous  event 
and  that  the  judicial  channels  for  legal  recourse  against  the  wrong- 
doer are  freely  open.  A  second  and  subsidiary  duty,  a  default  in  which 
has  often  served  to  fasten  responsibility  upon  the  state,  is  the  use  of 
due  diligence  to  prevent  the  injury,  and  in  a  criminal  case  the  exer- 
tion of  all  reasonable  efforts  to  bring  the  offenders  to  justice.- 

1  Grotius,  II,  ch.  21,  §  2;  Vattel,  liv.  II,  ch.  VI,  §§  71-73;  Hall,  215-218;  Oppen- 
heim,  I,  221;  PhilUmore,  I,  218;  Halleck,  ch.  XIII,  §6;  Moore's  Dig.  VI,  §§  1019- 
1021;  Calvo,  §  1271;  Pradier-Fodere,  §  202;  Fiore,  §§  669-673;  Anzilotti  in  13  R.  G. 
D.  I.  P.  (1906),  14,  298;  27  Law  Mag.  and  Rev.  (1901),  337;  Pradier-Fodere's  state- 
ment (I,  336)  that  the  state  is  responsible  "if  it  refuses  to  repair  the  damage  caused 
by  one  of  its  subjects"  is  inaccurate.  A  useful  contribution  to  the  subject  is  made 
by  Georg  Muszack,  Ueber  die  Haftung  einer  Regierung  fiir  Schaden,  welche  Aus- 
lander  .  .  .  gelitten  haben,  Strassburg,  1905,  p.  37  et  seq,  and  by  R.  E.  Curtis,  The 
law  of  hostile  military  expeditions,  reprinted  from  8  A.  J.  I.  L.  (1914),  1-37,  224-255. 

^  The  apprehension  and  punishment  of  the  offender  has  been  held  to  release  the 
government  from  liabiUty  on  several  occasions:  Duvall  claim  v.  Mexico,  Mr.  Gresham, 

213 


214  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

It  is  a  fundamental  principle  that  the  legislation  of  a  state  must  be 
such  as  to  enable  it  to  fulfill  its  international  duties.  Its  law  must 
impose  penalties  upon  the  violation  by  individuals — natives,  resi- 
dents or  ahens — of  the  international  obligations  of  the  state.  Thus 
Great  Britain  in  the  "Alabama"  case  could  not  plead  the  insufficiency 
of  its  legislation  on  neutrality  to  escape  liability  to  the  United  States 
for  the  violation  by  private  individuals  of  British  neutrality,^ 

More  uncertain  questions  are  the  measure  of  local  protection  which 
must  be  afforded  and  the  tests  of  state  negligence  in  preventing  a 
private  injury.  In  normally  well-ordered  states  government  liability 
is  measured  by  the  ability  to  protect  the  injured  person  in  a  given 
case.^  The  nature  of  the  case  is  all  important.  Thus,  if  the  moving 
cause  of  the  injury  is  notorious,  e.  g.,  bandits  in  a  certain  locality,^ 
a  greater  degree  of  protection  is  incumbent  upon  the  government  than 
in  cases  of  sudden  violence  which  the  best  organized  government  could 
not  foresee.  Commissioner  Wadsworth  in  the  Mills  case  before  the 
United  States-Mexican  commission  of  1868  expressed  the  opinion  that 
the  test  of  a  nation's  responsibility  for  injuries  committed  upon  aliens 
in  its  territory  by  private  persons  is  the  enforcement  of  the  laws  "with 
reasonable  vigor  and  promptness  to  prevent  violence  when  practicable, 
or  failing  in  that  to  punish  the  offenders  criminally,  and  to  indemnify 

Sec'y  of  State,  to  Mrs.  Robinson,  Sept.  20,  1894,  Moore's  Dig.  VI,  806;  Harivood 
claim  (Gt.  Brit.)  v.  Austria,  1852,  44  St.  Pap.  236;  Assassination  of  Servian  Vice- 
Consul  at  Pristina,  Turkey,  1890,  Baty,  224. 

A  notice  to  aliens  of  special  circumstances  rendering  it  dangerous  to  visit  certain 
portions  of  its  territory,  would  seem  to  release  the  state  from  liability  for  the  hap- 
pening of  the  events  against  which  they  were  warned.  Comments  on  Miss  Stone's 
capture  by  brigands  in  Turkey,  1901;  27  Law  Mag.  and  Rev.  (1901),  337. 

1  Nor  could  the  United  States  in  the  New  Orleans  riot  case  of  1891  escape  liability 
because  the  Constitution  gave  the  federal  government  no  means  to  compel  states  to 
prosecute  offenders  against  aUens.  See  also  Baldwin  (U.  S.)  v.  Mexico,  April  11, 
1839,  Moore's  Arb.  2863,  and  infra,  p.  226. 

^Bowley  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  Moore's  Arb.  3032;  Calvo,  §  1274, 
makes  the  "facilities  at  hand"  the  test  of  responsibility.  Mr.  Hay,  Sec'y  of  State, 
to  Mr.  Dudley,  min.  to  Peru,  Sept.  5,  1899,  Moore's  Dig.  VI,  806.  But  the  appre- 
hension and  punishment  of  the  guilty  will  be  demanded. 

In  weaker  states  like  China  and  Morocco,  the  rule  of  ability  to  protect  as  a  test  of 
liability  has  often  been  held,  by  strong  claimant  governments,  not  to  prevail. 

»  Baldwin  claim  v.  Mexico,  1887,  Moore's  Dig.  VI,  802. 


OBLIGATIONS    OF   THE    GOVERNMENT  215 

the  injured  party  by  [its]  remedial  civil  justice."  ^  A  preliminary  de- 
mand for  adequate  police  protection,  therefore,  is  considered  as  lay- 
ing the  foundation  for  a  claim  for  redress  of  injuries  in  case  it  is  not 
afforded. - 

The  general  rule  that  in  the  absence  of  governmental  complicity 
(the  particular  manifestations  of  which  will  be  examined  presently), 
the  government  is  not  responsible  for  the  WTongful  acts  of  private  in- 
dividuals which  it  could  not  prevent,  has  been  reiterated  on  numerous 
occasions  by  international  tribunals  and  by  the  Department  of  State.  ^ 

In  a  number  of  cases  occurring  in  the  more  poorly  organized  countries 
like  China,  Turkey,  Morocco  and  formerly  Greece  and  a  few  other  states, 
the  government  has  been  held  hable  for  the  acts  of  private  persons 
even  in  the  absence  of  governmental  complicity,  apparently  regard- 
less of  prmciple,  but  presumably  on  the  ground  that  an  indifferent 
police  protection  and  enforcement  of  the  laws  invited  disorder  and 
constituted  in  itself  an  international  delinquency.  In  other  words, 
liability  is  predicated  on  the  failure  to  prevent  the  injury,  regardless 
of  ability  to  prevent  it.  This  practice  overlooks  the  principle  that  an 
alien  visiting  unstable  countries  assumes  a  certain  measure  of  risk, 
and  compels  the  weaker  nations,  like  China  and  Morocco,  to  assume  a 
certain  degree  of  guaranty  for  the  safety  of  aliens.^    By  treaty,  some  of 

1  Mills  (U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  3034.    See  also  Fiore,  §  670. 

"  Mr.  Bacon,  Act'g  Sec'y  of  State,  to  Mr.  Leishman,  July  2,  1907,  For.  Rel.,  1907, 
II,  1072-1073. 

'  Thus  the  government  has  been  held  not  hable  for  acts  of  private  persons  in  the 
following  cases:  Wipperman  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3041 
(pillage  by  savages);  Dickens  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3037  and  Garza, 
ihid.  3038  (raiding  bands);  Mills  (U.  S.)  v.  Mexico,  iUd.  3034  (private  assault); 
Poston,  ibid.  2998  and  Sagardia  claim,  Magoon's  Reports,  471  (thieves);  Lovett 
(U.  S.)  I'.  Chile,  Aug.  7,  1892,  Moore's  Arb.  2990  (revolted  convicts);  Moliere  (U.  S.) 

V.  Spain,  Feb.  12,  1871,  ibid.  3252  (private  quarrel);  Sumpter  (U.  S.)  v.  Mex-ico, 
July  4,  1868,  ihid.  3038  (marauding  Indians);  Dorris  (U.  S.)  v.  Mexico,  ibid.  3003 
(private  scuffle  between  enraged  soldiers);  Johnson  (U.  S.)  v.  Mexico,  March  3,  1849, 
ibid.  3031  and  Duvall  claim  v.  Me.xico,  Mr.  Gresham  to  Mrs.  Robinson,  Sept.  20, 
1894  (robbery  by  highwaymen) ;  1  Op.  Atty.  Gen.,  March  11,  1802  (unlawful  captures 
by  individuals).    Mr.  Hay,  Sec'y  of  State,  to  Mr.  Fowler,  April  15,  1899,  Moore's  Dig. 

VI,  792  (piratical  acts  of  Haitian  citizens). 

*  Numerous  cases  of  private  murder  of  aliens  in  China,  reported  in  For.  Rel.  1880 
et  seq.    Japanese  subjects  murdered  in  China,  1874,  Moore's  Arb.  4857;  Dreyfus, 


216  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

the  weaker  states  have  occasionally  undertaken — or  been  compelled  to 
undertake — the  "special  protection"  of  nationals  of  certain  countries, 
which  has  been  construed  as  analogous  to  a  quasi-guaranty  of  the 
security  of  aliens.^ 

Where  the  offense  is  committed  against  the  representative  of  a  foreign 
state,  either  the  head  of  the  state,  a  public  minister,  or  even  a  consul, 
all  of  whom  enjoy  a  certain  special  protection,  the  government  has  on 
occasion  been  held  immediately  liable  for  the  wrongful  acts  of  private 
persons.- 

It  may  be  said  that  governments  occasionally  as  a  matter  of  policy 
and  equity  cause  reparation  to  be  made  for  the  injuries  committed 
by  their  subjects  upon  aliens.^  This  is  especially  true  in  the  case  of 
riots  directed  against  particular  classes  of  aliens,  for  which  acts  of 
violence  the  United  States  has  on  numerous  occasions  granted  indem- 
nities as  a  matter  of  grace,  while  denying  legal  liability. 

Arbitrage  international,  176,  177;  Lieut.  Cooper  claim  (Gt.  Brit.)  v.  Turkey,  1888, 
81  St.  Pap.  178;  Caldera  (U.  S.)  v.  China,  Nov.  8,  1858,  Moore's  Arb.  4629;  Hub- 
bell  V.  U.  S.,  15  Ct.  CI.  546  (based  principally  on  treaty  obligation);  Russia  v.  Turkey, 
1826  (Turkey  held  liable  for  depredations  of  Moorish  pirates),  13  St.  Pap.  899,  16 
St.  Pap.  647,  657.  Five  cases  of  British  subjects  injured  in  Greece,  about  1850,  by 
acts  of  individuals,  Baty,  116-118;  Marcos  v.  Morocco,  1900,  28  Clunet  (1901),  205. 
Murder  of  Italian  soldier  in  Crete,  1906,  1  A.  J.  I.  L.  (1907),  158;  13  R.  G.  D.  I.  P. 
(1900),  223;  Montijo  (U.  S.)  v.  Colombia,  Aug.  17,  1874,  Moore's  Arb.  1421  et  seg. 
(absence  of  {X)wer  considered  equivalent  to  omission  to  use  it).  Turkey  and  Morocco 
held  responsible  for  acts  of  pirates  from  their  shores  on  three  occasions,  12  R.  G.  D. 
I.  P.  (1905),  563-565.  "  Insufficiency  of  the  protective  measures  afforded,"  an  alleged 
ground  of  liability  in  certain  cases  in  Turkey,  For.  Rel.,  1897,  p.  592. 

'  Panama  riot  claims,  treaty  of  1846  with  New  Granada,  Moore's  Arb.  1361. 
Treaty  of  1831  with  Mexico,  Baldwin  (U.  S.)  v.  Mexico,  April  11,  1839,  ibid.  2859, 
2863;  Monlijo  (U.  S.)  v.  Colombia,  Aug.  17,  1874,  ibid.  1421,  1444;  Lawrence's 
Wheaton,  note  59. 

2  Attacks  on  German  consulate  in  Havre,  1888,  in  Messina,  1888  and  in  Warsaw, 
1901,  16  Clunet  (1889),  250.  French  and  German  consuls  murdered  in  Salonica, 
1876,  67  St.  Pap.  917;  Moore's  Dig.  V,  §  704,  discusses  cases  in  Venezuela,  Peru, 
Nicaragua,  Santo  Domingo  and  U.  S.  See  the  following  authorities:  Vattel,  Chitty's 
cd.,  Bk.  IV,  ch.  VI,  §  75,  p.  460;  Phillimore,  II,  §  246,  p.  263;  Pradier-Fodero,  IV, 
§  2108.    For.  Rel.,  1901,  534.    Sec  also  infra,  p.  223. 

But  .see  case  of  Servian  Vice-('onsul  assassinated  in  Turkey,  1890,  Baty,  224  and 
Wipperman  (U.  S.)  v.  VenczAiela,  Dec.  5,  1885,  Moore's  Arb.  3041,  which  were  not 
taken  out  of  thv.  general  rule  of  non-liability. 

»  1  Op.  Atty.  Gen.  106,  March  11,  1802. 


FACTORS   IMPOSING   LIABILITY    UPON   THE   GOVERNMENT  217 

§  87.  Factors  Imposing  Liability  upon  the  Government. 

A  long  line  of  cases  has  established  certain  qualifications  upon  the 
non-liability  of  the  government  for  the  wrongful  acts  of  private  in- 
dividuals. These  consist  in  certain  manifestations  of  the  actual  or 
implied  complicity  of  the  government  in  the  act,  before  or  atter  it, 
either  by  directly  ratifying  or  approving  it,  or  by  an  implied,  tacit  or 
constructive  approval  in  the  negligent  failure  to  prevent  the  injury, 
or  to  investigate  the  case,  or  to  punish  the  guilty  individual,  or  to  enable 
the  victim  to  pursue  his  civil  remedies  against  the  offender,^  The 
claimant  ordinarily  has  the  burden  of  proving  the  negligence  of  the 
government.^ 

The  direct  ratification  or  authorization  of  a  private  wrongful  act  is 
an  infrequent  occurrence,  yet  several  awards  have  been  made  on  this 
ground.^ 

The  failure  of  a  government  to  use  due  dihgence  to  prevent  a  private 
injury  is  a  well-recognized  ground  of  international  responsibility.^  The 
state  is  thus  responsible  for  every  injury  which  by  the  exercise  of  reason- 
able care  it  could  have  averted.    What  is  "due  diligence"  in  a  given 

'  See  particularly  the  cases  of  Mills,  Dickens  and  Wipperman  cited  in  footnote  3, 
page  215. 

^  Mills  and  Dickens  cases,  cited  supra. 

3  Wrongful  seizures  sanctioned  by  French  civil,  military  or  judicial  authorities, 
Kane's  notes  on  questions  .  .  .  under  convention  with  France,  July  4,  1831,  Phila., 
1836,  p.  31.  Authorization  or  ratification  of  private  acts  generally  has  a  political 
reason,  but  while  it  usually  releases  the  individual  from  liability,  it  imposes  liabiUty 
on  the  state.  McCord  v.  Peru,  Moore's  Dig.  VI,  989.  See  McLeod's  case,  Hall,  306; 
Moore's  Dig.  II,  24,  409;  VI,  261.  Piedras  Negras  clauns  (Mexico)  v.  U.  S.,  July  4, 
1868,  Moore's  Arb.  3035  (U.  S.  protected  certain  raiders  into  Mexico  by  its  regular 
army). 

*  Grotius,  liv.  II,  ch.  17;  Hubbell  et  al.  v.  U.  S.,  15  Ct.  CI.  546  (Chinese  Indemnity); 
The  case  of  the  Alabavia,  in  which  Great  Britain  was  held  liable  for  faihng  to  pre- 
vent individuals  from  violating  British  neutrahty,  Moore's  Dig.  VI,  999;  Evertsz 
(Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  904  (government  neghgently 
left  military  prisoners  without  means  of  sustenance,  and  was  therefore  held  liable  for 
cattle  they  appropriated).  49  Law  Times,  84.  Mr.  Bayard  to  Mr.  Scruggs,  May  19, 
1885,  For.  Rel.  1885,  212;  Baldwin  case  in  Mexico,  1887  (murder  by  well-known  out- 
laws); Caccavelh  claim  (France)  t-.  Dominican  Rep.,  For.  Rel.  1895,  I,  398,  400.  Mr. 
Frelinghuysen,  Sec'y  of  State,  to  Mr.  Matthews,  Jan.  16,  1883,  Moore's  Dig.  VI,  792; 
Calvo,  §  1274. 

By  reason  of  its  territorial  jurisdiction,  the  state  is  in  equal  measure  responsible 
for  the  acts  of  resident  aliens  as  of  its  nationals.    2  Wharton,  §  205. 


218  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

case  is  often  difficult  to  determine.  Hall  protests  vigorously  against  the 
doctrine  advanced  by  the  United  States  and  supported  apparently  by 
the  tribunal  of  arbitration  in  the  Alabama  case,  that  the  "diligence" 
required  must  be  "commensurate  with  the  emergency  or  with  the  mag- 
nitude of  the  results  of  neghgence."  ^ 

A  more  frequent  basis  of  governmental  liability  is  the  failure,  after 
reasonable  opportunity,  to  bring  the  offenders  to  justice.^  Incidental 
to  this  ground  of  liability  is  the  inadequate  punishment  of  guilty  in- 
dividuals,^ neghgently  permitting  them  to  escape,^  or  an  inexcusable 
delay  in  investigating  the  facts.^  Closely  related  to  these  reasons  for 
responsibility  is  a  pardon  or  amnesty  to  offenders,  by  which  the  plain- 
tiff is  deprived  of  the  right  to  try  the  question  of  liability,  or  the  punish- 
ment of  the  guilty  is  avoided.^ 

We  have  already  adverted  to  the  fact  that  on  several  occasions,  con- 
jBned  almost  exclusively  to  the  weaker  countries,  the  "due  diligence" 
rule  has  been  disregarded,  governmental  liability  being  predicated  on 
the  mere  inahility  to  prevent  the  act  or  bring  the  offenders  to  justice/ 

1  Hall,  217. 

2  De  Brissot  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  286S  (opinion  of  Mr. 
Little) ;  ibid.  2969  (opinion  of  Mr.  Findlay) — offender  permitted  to  go  at  large.  Pog- 
gioli  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  869;  Renton  claim  v.  Honduras, 
For.  Rel.  1904,  363  (refusal  to  diligently  prosecute  and  punish);  Piedras  Negras 
Claims  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  3035  (failure  to  punish);  Same 
in  Ruden  (U.  S.)  v.  Peru,  Dec.  4,  1868,  ibid.  1653,  1655;  Labaree  claim  v.  Persia,  For. 
Rel.  1904,  657  et  seq.;  Maninot  (France)  v.  Venezuela,  Feb.  19,  1902,  Sen.  Doc.  533, 
59th  Cong.,  1st  sess.,  44,  70. 

Willful  neglect  to  punish  may  be  considered  an  implied  sanction.  E.  W.  Huffcut  in 
2  Annals,  Amer.  Acad,  of  Pol.  and  Soc.  Science  (1891),  69;  Fiore,  §§  669-670. 

Sec'y  Fish  in  1875  held  that  there  was  no  duty  to  punish  in  the  absence  of  informa- 
tion as  to  the  offenders  (murderers);  Moore's  Dig.  VI,  789. 

'  Lenz  claim  v.  Turkey,  Mr.  Hay  to  Mr.  Straus,  March  25,  1899,  For.  Rel.,  1899, 
766,  and  Moore's  Dig.  VI,  792-794;  Renton  claim  v.  Honduras,  For.  Rel.  1895,  11, 
S90,  934;  1897,  347;  1904,  363,  and  Moore's  Dig.  VI,  794-799  (condemnation  for 
minor  offenses  of  persons  guilty  of  murder). 

*  Lenz  case  and  Renton  case  (For.  Rel.,  1904,  pp.  352,  362)  cited  in  footnote,  supra. 

"  Ruden  (U.  S.)  v.  Peru,  Dec.  4,  1868,  Moore's  Arb.  1653,  1655;  Prince  of  Wales 
claim  (Gt.  Brit.)  v.  Brazil,  1862,  54  St.  Pap.  614  el  seq. 

« Montijo  (U.  S.)  V.  Colombia,  Aug.  17,  1874,  Moore's  Arb.  1421,  1444;  Cotes- 
worth  and  Powell  (Gt.  Brit.)  v.  Colombia,  Dec.  14,  1872,  ibid.  2050,  2085. 

As  to  the  effect  of  amnesty  on  liability  for  the  acts  of  rebels,  see  infra,  p.  238. 

^  Supra,  p.  215. 


BRIG.^NDAGE  219 

In  several  cases  it  has  been  held  that  before  the  government  can  be 
rendered  Uable  the  individual  must  have  given  notice  in  time  oppor- 
tune to  have  prevented  the  injury/  or  have  made  a  demand  for  punish- 
ment of  the  offenders,-  and  prove  a  lack  of  reasonable  diligence  in  pre- 
venting the  injurious  act  or  a  refusal  to  bring  the  offenders  to  justice.^ 
These  cases  need  not,  however,  be  considered  authoritative,  inasmuch 
as,  in  practice,  the  government  has  often  been  held  to  show,  particularly 
in  cases  of  brigandage  and  acts  of  groups  of  individuals,  that  it  has 
used  due  diligence  to  prevent  the  act  or  to  punish  the  offenders,  notice 
on  the  part  of  the  victim  serving  simply  to  lay  a  stronger  foundation 
for  governmental  liability. 

The  denial  to  the  party  aggrieved  of  a  right  of  action  against  the 
offender  or  a  denial  of  aid  in  the  prosecution  of  the  claimant's  rights  may 
be  construed  as  an  adoption  of  the  act  by  the  government,  entailing  the 
responsibility  of  the  state.  It  is  in  effect  a  denial  of  justice.^  A  pardon 
or  amnesty  to  offenders  depriving  claimants  of  the  right  to  try  the  ques- 
tion of  liability  or  to  secure  the  punishment  of  the  guilty,  has  a  similar 
effect.^ 

§  88.  Brigandage. 

The  Uabilitj'  of  the  state  for  acts  of  brigandage  brings  up  practically 
the  same  questions  as  those  which  have  just  been  discussed.  In  the 
absence  of  proof  that  the  government  has  neglected  to  take  proper  steps 
to  suppress  brigandage  or  punish  the  guilty,  the  state  is  not  liable.^ 

1  Post  (U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  2998;  Garza  (U.  S.)  v.  Mexico, 
ibid.  3038. 

2  Dickens  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3037;  Poggioli  (Italy)  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  869. 

»  Wipperman  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3039,  3041;  Dickens 
(U.  S.)  V.  Mexico,  July  4,  1868,  ibid.  3037. 

■•  Kane's  notes  on  the  treaty  with  France  of  July  4,  1831,  pp.  31,  32;  PoggioU  (Italy) 
V.  Venezuela,  Feb.  13,  1903,  Ralston,  847,  869;  Johnson  (U.  S.)  v.  Peru,  Dec.  4,  1868, 
Moore's  Arb.  1656-1657. 

5  Supra,  p.  218,  note  6. 

«  Moore's  Dig.  VI,  800-809;  Case  of  Miss  Ellen  Stone  in  Turkey,  For.  Rel.,  1902, 
997-1023;  27  Law  Mag.  and  Rev.  (1901),  337;  Richter's  case  in  Turkey,  39  Clunet 
(1912),  998;  Dambitsch  in  Deutsche  Juristen-Zeitung,  1911,  col.  1208-1210;  Capture 
and  murder  of  British  subjects  in  Greece,  65  St.  Pap.  667-723;  Synge  and  Suter  casea 
in  Turkey,  1881,  72  St.  Pap.  1167. 


220  THE  DIPLOMATIC   PROTECTION  OF   CITIZENS   ABROAD 

Question  has  often  arisen  as  to  the  liability  of  the  defendant  states  for 
ransoms  demanded  by  and  paid  to  brigands  by  claimants  or  their  gov- 
ernments. The  claimant  state  (i.  e.,  the  national  state  of  the  victim) 
has  only  in  rare  cases,  as  a  matter  of  humanity,  advanced  the  price  of  a 
ransom  for  payment  to  brigands.^  Reimbursement  has  on  several 
occasions  been  demanded  of  the  defendant  state  or  else  that  state  has 
been  asked  to  make  a  direct  payment  to  the  brigands.^  Only  in  rare 
instances  have  such  demands  been  successful,  and  then  only  because 
actual  or  implied  complicity  or  negligence  of  the  state  was  asserted  or 
admitted.^ 

MOB   VIOLENCE 

§  89.  Obligations  of  the  Government. 

The  principles  governing  the  responsibility  of  the  state  for  injuries 
sustained  by  aliens  as  a  result  of. mob  violence  or  riot  are  closely  re- 
lated to  those  governing  its  responsibility  for  injuries  committed  by 
individuals.  In  all  parts  of  the  world  it  occasionally  happens  that 
mobs  in  sudden  outbreaks  of  passion  sweep  away  all  restraint  and  vent 
their  fury  upon  aliens.  These  contingencies  arise  in  well-ordered  as 
well  as  in  unstable  governments,  and  the  ordinary  precautions  against 
disorder  often  prove  insufficient  to  avoid  them.  In  such  cases,  if  the 
authorities  have  used  due  diligence  to  prevent  or  repress  the  riot  and 
punish  those  who  may  be  concerned  in  it,  the  government  is  reUeved 
from  legal  liability,  unless  it  is  under  special  obligations  to  render  pro- 

'  In  1881,  after  the  Synge  and  Suter  cases,  when  ransoms  were  paid  by  Great  Britain 
for  the  release  of  these  subjects  by  brigands,  that  government  decided  not  to  advance 
money  in  future  for  such  purposes.  72  St.  Pap.  1167  et  seq.  In  1907.  however,  the 
British  government  demanded  a  large  sum  from  Turkey  on  account  ot  the  ransom 
paid  for  the  release  of  Mr.  Robert  Abbott.  The  fact  that  he  was  kidnapped  from 
his  house  in  the  heart  of  a  large  city,  puts  this  case  on  different  grounds  than  the 
usual  case  of  brigandage.  Several  bills  have  been  introduced  in  Congress  to  reim- 
l)urse  those  persons  who  subscribed  to  the  ransom  which  secured  the  release  of  Miss 
Ellen  Stone.    See  infra,  p.  413. 

2  Great  Britain  v.  Turkey,  1881,  72  St.  Pap.  1167;  Great  Britain  v.  Greece,  65  St. 
Pap.  607-723. 

'  Turkey  and  Greece  in  cases  cited  in  note  2,  supra.  On  principle,  the  defendant 
gr)vernment  is  not  liable  for  ransoms  paid  to  criminals  on  behalf  of  victims  of  their 
acts.   See  cases  cited  in  27  Law  Mag.  and  Rev.  (1901),  337. 


MOB   VIOLENCE  221 

tection,  either  by  virtue  of  a  treaty  or  of  the  official  character  of  the 
person  assailed.*  By  the  fact  that  weak  governments  like  China, 
Morocco  and  others  in  the  Far  and  Near  East  are  held  to  a  high  degree 
of  responsibility  for  injuries  due  to  mob  violence,  it  may  be  concluded 
that  a  fundamental  condition  of  non-Uability  of  the  government  is  a 
stable  political  organization  normally  adequate  to  prevent  such  out- 
breaks. 

The  difficulty  in  determining  governmental  liability  lies  in  estab- 
lishing what  is  "due  diligence"  in  a  given  case.  The  question  of  burden 
of  proof  is  of  minor  importance,  inasmuch  as  the  happening  of  the 
event  usually  throws  upon  the  defendant  government  the  duty  to 
show  that  it  has  used  its  best  efforts  to  prevent  the  disaster  and  punish 
the  guilty.  In  well-ordered  states  evidence  of  due  diligence  will  be 
more  readily  received  as  a  bar  to  a  claim  for  indenmity  than  in  normally 
disturbed  states  like  China  and  other  countries  in  the  Near  and  Far 
East.  Nevertheless,  aside  from  any  question  of  delinquency  upon 
the  part  of  the  authorities,  it  may  be  said  that  in  most  cases  of  injuries 
inflicted  upon  ahens  during  riots,  indemnities  have  been  paid  as  a  mat- 
ter of  equity,  either  because  of  the  fact  that  the  fury  of  the  mob  was 
directed  against  aliens  as  such,  or  against  the  subjects  of  a  certain 
foreign  power,  as  in  the  Aigues-Mortes  riots  in  1893,  or  because  such 
outbreaks  having  occurred  on  several  occasions  wathin  the  same  state, 
a  moral  obligation  to  make  amends  is  assumed  by  the  state,  either  for 
its  inability  to  prevent  such  disorders  or  for  the  inadequacy  of  redress 


'  The  responsibility  of  governments  for  mob  violence,  by  J.  B.  Moore,  Columbia 
Law  Times,  May,  1892,  211-215.  See  also  articles  by  James  Bryce,  Legal  and  con- 
stitutional aspects  of  the  lynching  at  New  Orleans,  4  New  Review,  May,  1891,  385- 
397;  by  E.  W.  Huffcut,  International  liabiHty  for  mob  injuries,  2  Annals  of  the  Amer. 
Acad,  of  Pol.  &  Soc.  Science  (1891),  69-84;  by  H.  Arias,  The  non-liability  of  states 
for  damages  suffered  by  foreigners  in  the  course  of  a  riot,  an  insurrection  or  civil  war, 
7  A.  J.  I.  L.  (1913),  724-766;  and  see  also  a  good  article  on  the  same  general  subject  by 
Juhus  Goebel,  Jr.,  in  8  A.  J.  I.  L.  (1914),  802-852  and  a  doctoral  dissertation  by  Georg 
Muszack,  Ueber  die  Haftung  einer  Regierung  filr  Schaden  welche  Auslander  gele- 
gentlich  inneren  Unruhen  in  ihren  Landen  erUtten  haben,  Strassburg,  1905,  in  both 
of  which  there  is  an  interesting  discussion  of  theorj\  See  also  Moore's  Dig.  Yl,  809- 
883,  and  the  general  works  of  Calvo,  III,  §  1280  et  seq.;  Bluntschli,  §  380  bis;  Hall,  6th 
ed.,  215,  219;  Westlake,  2nd  ed.,  I,  329;  Oppenheim,  2nd  ed.,  I,  222;  G.  de  Leval, 
Protection  diplomatique  des  nationaux,  173. 


222  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

through  judicial  channels \     The  legal  aspects  of  state  responsibility 
in  these  cases  will  be  considered  presently. 

§  90.  Special  Protection  Due  in  Certain  Cases. 

The  obligation  to  indemnify  arising  out  of  a  treaty  guaranty  of 
special  protection,  regardless  of  any  delinquency  of  the  authorities, 
is  illustrated  in  the  case  of  the  Panama  riot  claims  of  1856  against 
New  Granada,  which  the  latter  country  satisfied  on  account  of  having 
undertaken,  by  article  35  of  the  Treaty  of  1846  with  the  United  States, 
"to  preserve  peace  and  good  order  along  the  transit  route."  ^  Where- 
ever  a  government  obligates  itself  to  preserve  order,  as  weak  countries 
frequently  do,  claims  for  injuries  arising  out  of  mob  violence  are  usually 
rigorously  prosecuted.  China,  indeed,  regardless  of  treaties,  has  in 
innumerable  cases  been  held  to  a  degree  of  responsibility  amounting 
actually  to  a  guaranty  of  the  security  of  persons  and  property  of  aliens.^ 
Turkey,  Morocco  and  other  countries  where  governmental  control  is 
weak  and  civil  disorders  are  not  an  abnormal  condition  are  held  only 
to  a  slightly  narrower  degree  of  responsibility. 

The  United  States  has  on  several  occasions  resisted  the  attempts 
of  foreign  governments  to  fix  liability  on  the  federal  government  be- 

1  Aigues-Mortes  riots,  1  R.  G.  D.  I.  P.  (1894),  171  et  seq.;  Calvo,  VI,  §  256;  Saida 
case  in  1881, 1  R.  G.  D.  I.  P.  (1894),  171, 175.  Sacking  of  mission  houses  at  Nictheroy, 
near  Rio  Janeiro,  For.  Rel.,  1901,  28-30;  Fortune  Bay  case,  1878,  fisherman  driven 
out  in  violation  of  treaty,  Moore's  Dig.  VI,  819;  72  St.  Pap.  1265.  KiUing  of  Chinese 
at  Torreon,  Mexico,  1910,  for  which  Mexico  paid  a  large  indemnity.  Convention  of 
Dec.  16,  1911,  8  A.  J.  I.  L.  (1914),  Suppl.  147.  See  Goebel  in  8  A.  J.  I.  L.  813,  819- 
831,  who  finds,  in  cases  of  violence  against  certain  nationalities,  a  legal  liability,  re- 
gardless of  fault  by  the  state.  The  payments  made  in  numerous  cases,  and  various 
statutes  imposing  a  liability  upon  municipalities,  regardless  of  fault,  lend  support  to 
this  view. 

^  Moore's  Arb.  1361-1396,  at  p.  1379.  New  Grenada  assumed  liability  in  the 
convention  of  Sept.  10,  1857,  art.  1.    See  also,  as  to  British  claims,  65  St.  Pap.  1219. 

'  In  fact,  so  frequent  have  been  the  cases  of  murder  of  missionaries  by  rioters  in 
China  that  a  practice  of  the  U.  S.  has  grown  up  fixing  the  sum  of  $5,000  as  indemnity 
for  a  human  life.  The  British  and  French  governments  exact  as  heavy  indemnities 
jis  possible,  and  exemplary  damages  as  well,  in  flagrant  cases.  These  cases  in  China 
are  illustrated  by  the  following  incidents:  the  Boxer  movement,  Moore's  Dig.  V, 
476-533;  the  Lienchou  indemnity,  For.  Rel.,  1906,  308-341;  1907,  pt.  I,  211-218;  the 
Shanghai  riots,  For.  Rel.,  1908,  146;  other  cases  in  For.  Rel.  See  also  35  Clunet 
(1908),  646;  Bonfils,  §  440;  French  claims,  51  St.  Pap.  651,  668. 


FACTORS   IMPOSING   LIABILITY   UPON   THE    GOVERNMENT  223 

cause  their  subjects  were  by  treaty  promised  "protection,"  on  the 
ground  that  aliens  were  given  the  same  protection  and  means  of  judi- 
cial redress  as  nationals. 

The  special  protection  due  to  the  representatives  of  foreign  powers 
explains  the  prompt  payments  of  indemnities  for  attacks  by  mobs 
on  foreign  consuls  or  consular  agents.  The  consul  is  considered  as 
injured  not  alone  as  an  individual  but  in  his  character  as  the  repre- 
sentative of  a  foreign  government.^ 

§  91.  Factors  Imposing  Liability  upon  the  Government. 

It  has  already  been  observed  that  on  principle  the  government  is 
not  liable  for  the  unlawful  acts  of  a  mob  which  by  due  diUgence  it  was 
unable  to  quell  or  whose  acts  it  was  unable  to  prevent.  On  this  ground 
the  United  States  has,  on  occasion,  declined  to  press  claims  against 
foreign  governments  and  has  successfully  resisted  the  attempts  of 
foreign  governments  to  render  the  United  States  liable.^  It  is  a  neces- 
sary condition,  however,  that  judicial  recourse  be  open  to  the  victims 
of  the  mob.  In  such  cases,  the  foreign  government  can  on  principle 
demand  no  greater  reparation  than  the  municipal  law  provides  for 
nationals.^ 

1  Rev.  Stat.,  §  4062  gives  special  protection  to  the  diplomatic  representatives  of 
foreign  governments.  See  also  U.  S.  Consular  Regulations,  §  72.  The  following 
cases  of  attacks  upon  foreign  ministers,  consuls  or  consular  agents  by  mobs  were 
met  by  prompt  indemnities:  Spanish  consul  in  New  Orleans,  Aug.  21,  1851,  Moore's 
Dig.  VI,  811,  813;  U.  S.  consular  agent  in  MoUendo,  Peru,  For.  Rel.  1893,  509-524; 
French  consulate  in  Naples,  1893,  Calvo,  I,  §  256;  German  legation  in  Madrid,  1885, 
Calvo,  §  1272;  Spanish  minister  in  Santiago,  Chile,  1864,  Wiesse,  C,  Le  droit  int. 
apphqu6  aux  guerres  civiles,  Lausanne,  1898,  p.  47.  See  also  cases  cited  in  Moore's 
Dig.  V,  §  704. 

2  Attacks  on  Chinese  in  Denver,  1880,  Moore's  Dig.  VI,  820;  Attacks  on  British 
subjects  in  Texas,  1880,  and  on  Japanese  subjects  in  Utah,  1884,  Moore's  Dig.  VI, 
819;  Attack  on  Protestant  church  at  Acapulco,  Mexico,  1875,  Moore's  Dig.  VI, 
815;  Shann's  case  v.  Spain  (attack  in  Cuba,  1834),  Moore's  Dig.  VI,  259;  Derbec 
(France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  3029;  Laguerene  (U.  S.)  v.  Mexico, 
March  3,  1849,  ibid.  3027  (dictum);  Underbill  (U.  S.)  v.  Venezuela,  Feb.  17,  1903, 
Ralston,  I,  45,  50;  Serra  (Italy)  v.  Peru,  Nov.  25,  1899,  Descamps  and  Renault,  Rec. 
des  traites,  etc.,  1901,  p.  720;  Bluntschli,  §  380  bis. 

3  See  speech  of  M.  Pichon,  French  minister  of  foreign  affairs,  in  connection  with  the 
Barcelona  riots  of  1909,  37  Clunet  (1910),  1140.  See  also  Russian  defense  against 
Swiss  claims,  1905,  Rapport  du  Conseil  Federal  (Switzerland),  1905,  p.  300. 


224  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

The  government  is  liable,  however,  where  it  fails  to  show  due  dili- 
gence in  preventing  or  suppressing  the  riot,  or  where  the  circumstances 
indicate  an  insufficiency  of  protective  measures  or  a  complicity  of 
government  officers  or  agents  in  the  disorder.  The  negligent  failure 
to  prevent  the  riot  has  on  several  occasions  been  made  the  principal 
ground  of  government  liability,^  and  in  a  few  cases  liability  has  been 
predicated  upon  insufficiency  of  pohce  protection.^ 

Liability  is  still  more  definitely  fastened  upon  the  government  where 
persons  in  its  employ  connive  at  or  show  indifference  to  the  riot  and 
the  resulting  damage  or  injuries.^ 

1  New  Orleans  attack  upon  Italians  in  1891,  Moore  VI,  837  et  seq.;  Westlake,  I,  329; 
James  Bryce  in  4  New  Review,  May  1891,  385;  18  Clunet  (1891),  1147-1161;  Colo- 
rado riot  against  Italians  in  1895  (authorities  made  no  resistance),  For.  Rel.,  1895, 
II,  938  et  seq.;  Rock  Springs  riot  against  Chinese,  1885,  Moore's  Dig.  VI,  822  et  seq. 
(local  authorities  stood  by  with  evidence  of  actual  approval);  Casablanca  riots  di- 
rected against  foreign  workmen,  1907,  For.  Rel.,  1907,  II,  889-899  (some  conflicting 
evidence  as  to  whether  failure  to  prevent  riot  was  due  to  negligence  or  not) ;  Dupleix 
affair  of  France  v.  Japan,  massacres  in  1868;  Radcliffe  claim  (Gt.  Brit.)  v.  U.  S.  for 
destruction  of  claimant's  fish  hatchery  in  Colorado,  1901,  where  state  failed  to  afford 
protection,  notwithstanding  request  therefor.  34  Stat.  L.  1400;  Sen.  Doc.  271,  58th 
Cong.,  2nd  sess.,  H.  Doc.  441,  59th  Cong.,  1st  sess.;  Riots  against  Greeks  in  South 
Omaha,  1909,  where  police,  with  notice  of  hostility  against  the  Greeks,  permitted 
circulation  of  petition  calling  mass  meeting  to  devise  measures  to  "effectively  rid" 
the  city  of  the  Greeks,  and  permitted  the  mass  meeting  and  the  inflammatory 
speeches  there  uttered,  and  chief  of  police  allowed  haK  his  force  to  remain  off  duty. 
The  Department  of  State  would  be  justified  in  considering  these  facts  as  amounting 
to  police  negligence. 

2  Cases  in  Marsovan  and  elsewhere  in  Turkey,  Moore's  Dig.  VI,  865;  For.  Rel., 
1897,  588-92;  Bain  case  (Gt.  Brit.),  v.  U.  S.,  1895  (shot  unintentionally  by  rioters; 
poUce  hid  for  safety  behind  cotton  bales),  For.  Rel.,  1895,  I,  686-696,  298-301, 
Moore's  Dig.  VI,  849;  Wexel  and  De  Gress  (U.  S.)  v.  Peru,  1876,  Moore's  Dig.  VI, 
817;  Don  Pacifico  (Gt.  Brit.)  v.  Greece,  1847,  Moore's  Dig.  VI,  852.  Several  cases  in 
which  the  victims  were  taken  from  jail  by  a  mob  (New  Orleans  case  in  1891,  swpra; 
Hahnville,  La,  For.  Rel.,  1896,  396-426;  1897,  353-354;  Tallulah,  La,  For.  Rel.,  1899, 
440-466;  ihid.  1900,  715-731  and  President's  messages,  1899  and  1900;  Moreno  case 
in  California,  1895,  Moore's  Dig.  VI,  851;  Albano  case  in  Tampa,  Fla.,  1910,  H.  Doc. 
105,  03rd  Cong.,  1st  sess.,  are  prima  facie  chargeable  to  insufficiency  of  police  pro- 
I (Motion,  although  the  U.  S.  denied  government  liability  and  paid  indemnities  out 
of  humane  considerations  or  as  an  act  of  grace. 

'  Mr.  Fi.sh,  Soc'y  of  State,  to  Mr.  Partridge,  March  5,  1875  (a  case  in  Brazil),  2 
Wharton,  602;  Buildings  burned  in  Marsovan,  Ilarpoot  and  Marash  in  presence  of 
Turkish  soldiery,  Moore's  Dig.  VI,  865  citing  For.  Rel.  1893  and  1895,  and  Presi- 
dent's message,  1896;  Chinese  riots  in  1856,  where  American  citizens  were  compelled 


FACTORS    IMPOSING    LIABILITY    UPON    THE    GOVERNMENT  225 

The  liability  of  the  government  is  even  less  doubtful  where  the 
police  or  other  officials  are  implicated  in  the  violence.  So  where  the 
mob  was  aided  by  soldiers  or  gendarmes/  or  where  the  police  took 
part  in  the  assault,^  governmental  liability  was  asserted  and  pressed 
to  a  successful  issue. 

The  failure  to  punish  the  guilty  individuals  furnishes  a  ground  of 
liability.  The  difficulty  of  ascertaining  the  identity  of  the  guilty  in- 
dividuals and  of  securing  their  indictment  and  punishment  is,  owing 
to  the  circumstances  of  such  mob  disorders,  easily  apparent.  The 
identity  of  individuals  is  usually  lost  in  the  mob  and  public  sympathy 
with  rioters  usually  frustrates  every  attempt  to  indict,  try,  and  punish. 
The  United  States,  notwithstanding  denial  of  legal  liability,  has  in  a 
number  of.  cases  paid  indemnities  to  foreign  governments  where  there 
was  a  failure  to  punish  any  guilty  individuals.^ 

The  peculiar  constitutional  position  of  the  United  States  by  which 
the  rights  of  aliens  are  assured  by  the  federal  government  under  treaty 
and  yet  the  punishment  of  offenses  against  these  rights  is  within  the 
control  of  the  states,  has  caused  many  protracted  arguments  in  mob 
violence  cases.  Owing  to  local  feeling,  it  is  generally  impossible  to 
secure  the  indictment  and  punishment  of  rioters,  and  state  officials 
do  not  always  use  their  best  efforts  to  bring  about  their  prosecution. 

to  flee  from  the  fury  of  the  mob,  supported  by  the  authorities,  Moore's  Arb.  4627; 
Wright  claim  against  Guatemala,  For.  Rel.,  1909,  354-355. 

1  Don  Pacifico  case  (Great  Britain)  v.  Greece,  Moore's  Dig.  VI,  852,  citing  39  Br. 
and  For.  St.  Pap. 

2U.  S.  S.  Baltimore  v.  Chile,  1890,  Moore's  Dig.  VI,  854-864;  Riots  at  Port- 
au-Prince,  Haiti,  1885,  Moore's  Arb.  1859;  Riots  in  Panama  against  officers  of 
U.  S.  S.  Columbia,  1906,  and  against  sailors  of  U.  S.  S.  Buffalo,  1908,  For.  Rel., 
1909,  474,  491;  Panama  Riot  claims,  Moore's  Arb.  1361  et  seq.;  Donoughho  (U.  S.) 
V.  Mexico,  July  4,  1868,  Moore's  Arb.  3014;  Jeannotat  (U.  S.)  v.  Mexico,  ibid.  3674. 

'  While  the  victims  have  generally  been  referred  to  their  judicial  remedies  and  a 
denial  of  government  liability  was  predicated  largely  upon  their  failure  to  sue  civilly, 
the  futility  of  a  resort  to  the  civil  courts  is  as  a  rule  even  greater  than  the  attempt  to 
prosecute  criminally.  The  cases  indicate  that  the  argument  has  not  been  seriously 
pursued  in  bar  of  the  claimant's  title  to  relief. 

In  the  Erwin  case  in  Mississippi  (1901),  the  identity  of  the  guilty  persons  was  not 
ascertained,  For.  Rel.,  1901,  283  et  seq.  In  the  New  Orleans  (1891),  Tallulah,  Moreno 
and  Suaste  cases  no  indictments  were  found.  In  the  South  Omaha  (1909)  case,  no 
one  was  brought  to  trial,  although  a  few  were  indicted.  In  the  Don  Pacifico  case 
there  was  a  failure  to  pursue  judicial  inquiries  or  institute  prosecution. 


22(3  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

The  federal  government  must  content  itself  with  a  courteous  request 
upon  the  governor  of  the  state  to  secure  punishment  of  the  guilty, 
or  to  make  appropriate  amends.  The  offense  being  considered  as  one 
against  state  law,  there  is  no  legal  power  to  bring  the  offenders  to  justice 
in  the  federal  courts.  The  United  States,  on  its  own  part,  can  show  a 
consistent  effort  to  bring  about  punishment,  and  on  this  ground  has 
sometimes  denied  its  liability  for  the  injuries.  Indemnities  have  been 
paid  in  such  cases  without  the  admission  of  legal  liability.  The  ina- 
bility through  constitutional  defects  to  enforce  treaty  rights  of  aliens 
is  not,  however,  a  sufficient  answer  to  an  assertion  of  international 
liability  for  violation  of  aliens'  treaty  rights,  and  where  state  officials 
are  delinquent,  either  in  preventing  the  riot  or  punishing  the  rioters, 
and  decline  to  pay  indemnities  to  the  victims,  the  federal  government 
must,  by  reason  of  the  very  defectiveness  of  its  internal  machinery, 
undertake  this  international  liabiUty.  The  recommendations  of  Presi- 
dents Harrison,  McKinley,  Roosevelt  and  Taft  to  bring  within  the 
jurisdiction  of  the  federal  courts  offenses  against  the  treaty  rights  of 
aliens,  have  not  resulted  in  remedial  legislation.^  The  United  States, 
moreover,  has  resisted  the  attempts  of  foreign  governments  to  plead 
constitutional  defenses  as  a  bar  to  international  obligations.^ 

§  92.  Statutory  Compensation  by  Municipalities. 

By  the  municipal  law  of  some  jurisdictions,  cities  and  counties  are 

'  Senate  Rep.  392,  54th  Cong.,  1st  sess.,  to  accompany  S.  1580.  Several  bills  have 
been  introduced  to  bring  about  this  result.  For  President  Harrison's  recommenda- 
tion see  message  of  1891,  For.  Rel.,  1891,  vi;  for  President  McKinley's  recom- 
mendations, see  messages  of  1899  and  1900,  For.  Rel.,  1899,  xxiii,  1900,  xxii;  for 
President  Roosevelt's,  see  For.  Rel.,  1906,  xUii.  See  also  3  Op.  Atty.  Gen.  253.  The 
federal  government,  as  is  the  case  in  Switzerland  (Constitution,  art.  82,  112,  113), 
should  have  the  exclusive  right  to  legislate  concerning  aliens,  just  as  it  has  the  power 
to  conclude  treaties.  It  should  at  least  have  the  power  to  prevent  states  from  dis- 
criminating between  aliens  of  different  nationalities.  Burr,  Treaty-making  power, 
1912,  p.  377  el  seq.  This  constitutional  conflict  in  the  United  States  has  on  several 
occasions  led  to  diplomatic  difficulties  with  foreign  governments.  See  Resolutions 
of  the  Institute  of  Int.  Law,  Sej)t.  10,  1900,  Paragraph  4;  18  Annuaire,  255;  Speech  of 
Senator  Edmunds,  June  3,  1886,  Cong.  Record,  v.  17,  part  5,  p.  5186;  and  a  good 
discussion  by  Robert  Lansing  in  1908  Proceedings  of  the  Araer.  Soc.  of  Int.  Law, 
V.  2,  pp.  44-60.    See  also  supra,  p.  202,  note  1. 

2  Smyth  case  in  Brazil,  1875,  Moore's  Dig.  VI,  815. 


STATUTORY   COMPENSATION   BY   MUNICIPALITIES  227 

compelled  to  indemnify  the  victims  of  mob  violence.  A  law  of  1795 
to  this  effect  in  France,  and  another  in  Belgium,  is  still  in  force  and  has 
been  invoked  on  many  occasions.^  A  similar  system  prevails  in  some 
of  the  states  of  Germany  and  in  Austria.  Several  states  of  this  country 
have  enacted  statutes  making  cities  and  counties  liable  for  injuries 
inflicted  upon  private  property  and  individuals  by  mobs.^  The  theory 
underlying  these  statutes  is  that  in  a  well-ordered  community  the 
citizens  should  prevent  such  injuries,  and  that  the  innocent  victims 
of  such  a  disaster  should  not  alone  bear  a  loss,  which  should  be  dis- 
tributed among  the  members  of  the  community  at  large. ^  The  theory 
is  closely  related  to  that  justifying  workmen's  compensation,  indemnity 
for  errors  of  criminal  justice,  and  social  insurance  generally. 

The  Institute  of  International  Law  considered  that  independently 
of  the  right  of  aliens  to  indemnity  by  municipal  law,  they  have  the 
right  to  compensation  when  injured  in  person  or  property  during  mob 

^  The  French  decree  of  1795  (10  vend^miaire  an  IV),  which  also  applied  to  Belgium, 
has  been  somewhat  amended  by  the  law  of  April  5,  1884,  arts.  106-109  and  by  the 
recent  amending  law  of  April  16,  1914  which  governs  the  distribution  of  liability  be- 
tween state  and  commune.  See  31  Rev.  du.  Dr.  Pub.  (1914),  445-448.  The  original 
French  law  is  set  out  briefly  in  Calvo,  III,  §  1291.  The  law  of  1884  imputes  liability 
to  the  commune  whether  citizens  or  aliens  caused  the  damage,  whereas  the  law  of 
1795  excluded  liabihty  if  caused  by  aliens.  By  both  laws  (§  108  of  the  law  of  1884) 
the  commune  is  released  from  Uability  if  it  can  prove  that  all  measures  within  its 
power  were  taken  to  prevent  the  riot.  The  statute  applies  alike  to  aliens  and  to  na- 
tionals, 24  Clunet  (1897),  786.  See  De  Groote,  H.,  De  la  responsabiht^  des  communes 
en  cas  d'emeute  et  de  grfeve,  Paris,  1906;  Duvivier,  Paul,  Etude  sur  le  decret  du 
10.  vendemiaire  an  IV,  Bruxelles,  1904.  See  also  supra,  p.  141  and  works  by  Pois- 
sonier  and  Beaudouin,  cited  in  note  2;  G.  de  Leval  in  24th  Rep.  of  the  Int.  Law 
Asso.  (1907),  207.    See  also  23  Journal  du  Dr.  Administratif  (1875),  526. 

Statutes  making  communities  liable  for  depredations  committed  by  lawless  persons 
have  long  existed  in  England.  Ratcliffe  i'.  Eden,  2  Cowp.  485;  see  also  4  Law  Mag. 
and  Rev.  (1875),  552-562. 

^  Statutes  to  this  effect,  varying  in  detail,  have  been  enacted  in  the  following  states: 
Cahfomia,  Illinois,  Kansas,  Maine,  New  Hampshire,  New  York,  Pennsjdvania. 
Dillon,  Municipal  corporations,  5th  ed.,  IV,  §§  1637-1638. 

The  constitutionality  of  these  statutes  has  been  upheld  by  the  Supreme  Court  in 
Louisiana  v.  New  Orleans,  109  U.  S.  285;  see  also  Pennsylvania  Co.  r.  Chicago,  81 
Fed.  317,  and  the  extensive  note  in  6  Amer.  &  Eng.  Ann.  Cases,  268.  It  is,  under 
most  of  the  statutes,  immaterial  whether  defendant  could  or  ought  to  have  prevented 
the  destruction  of  plaintiff's  property. 

» See  Darlington  v.  New  York,  31  N.  Y.  164. 


228  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

violence  where  the  fury  of  the  mob  is  directed  against  aliens  as  such 
or  as  subjects  of  a  certain  state. ^  This  was  considered  by  Prof,  von 
Bar  as  an  acknowledgment  of  the  principle  that  the  state  does  not 
guarantee  aliens  any  greater  security  than  nationals.^  When  the  in- 
jured person  has  provoked  the  violence  against  himself,  the  obliga- 
tion of  the  state  ceases.^ 

The  fact  that  indemnities  are  so  frequently  paid  in  mob  violence 
cases  has  led  some  writers  to  conclude  that  the  distinction  between 
equitable  compensation  and  indemnity  for  legal  fault  is  specious  only, 
and  that  the  mere  happening  of  the  event  entails  liability.  It  is  not 
advisable,  however,  to  eradicate  the  distinction  or  to  impose  upon 
the  government  a  presumption  of  absolute  guaranty  for  the  security 
of  aliens,  notwithstanding  the  fact  that  in  most  of  the  cases,  equitable 
considerations,  if  not  law,  dictate  the  justice  of  indemnity. 

CIVIL  WAR  INJURIES 

§  93.  General  Principles  and  Theory. 

The  principles  governing  the  responsibilit}'^  of  the  state  for  injuries 
sustained  by  aliens  during  civil  war  bear  close  relation  to  those  govern- 
ing its  responsibihty  in  the  case  of  mob  violence,  but  embrace  so  many 
distinctively  characteristic  features  that  the  subject  warrants  separate 
treatment.  It  is  not  without  many  difficulties.  These  arise  princi- 
pally from  the  fact  that  the  practice  of  states  has  varied  greatly  in 
the  application  of  such  rules  as  may  be  considered  to  govern  the  sub- 
ject. 

The  question  of  termmology  need  not  detain  us  long.  Publicists  have 
distinguished  between  sedition,  insurrection  and  civil  war;  but  for 
present  purposes  these  may  be  regarded  as  different  degrees  of  a  po- 
litical uprising  of  part  of  a  civilized  society  against  the  lawfully  con- 
stituted authorities."* 

'  18  Annuaire,  254-256.  This  excludes  the  theory  of  fault  of  the  government,  and 
there  is  much  to  be  said  in  its  support.    Goebel  in  8  A.  J.  I.  L.  (1914),  812. 

2  18  Annuaire,  237. 

'  18  Annuaire,  255,  paragraph  3.  The  complete  resolutions  of  the  Institute  of 
Sept.  10,  1900  on  this  subject  are  reprinted  in  Oppenheim,  I,  224-225. 

*  The  distinctions  are  discussed  in  some  detail  in  Lawrence's  Wheaton,  pp.  522-523, 
note  171. 


CIVIL   WAR   INJURIES  229 

Different  theories  have  prevailed  as  to  the  liability  of  the  state  for 
injuries  sustained  by  aliens  in  civil  war.  One  doctrine,  supported 
by  Brusa,  Bar  and  other  distinguished  publicists,  holds  that  the  state 
is  responsible  on  principle  for  all  such  damage  sustained  by  aliens.^ 
This  doctrine  of  responsibility,  briefly,  is  based  on  one  of  several  theories: 
(1)  the  fault  of  the  state  in  permitting  a  revolution  to  arise;  -  (2)  the 
theory  of  expropriation,^  according  to  which  the  state  at  the  sacrifice 
of  individual  property  derives  a  pubhc  benefit  from  the  suppression 
of  a  revolution;  (3)  the  theory  of  risk,^  according  to  which  the  state 
assumes  the  risk  of  maintaining  order,  or,  in  other  words,  the  state  be- 
comes a  guarantor  of  safety;  or  (4)  the  theory  of  social  insurance,'^ 
by  which  the  state  fulfills  its  highest  mission  in  preserving  its  integrity 
and  should  compensate  those  individuals  who  suffer  accidental  sacri- 
fices in  the  attainment  of  this  end.^ 

These  theories,  however  mteresting,  have  all  been  abandoned  and 
the  doctrine  which  has  now  received  general  support  is  that  on  prin- 
ciple Uhe  state  is  not  responsible  for  the  injuries  sustained  by  aliens 
at  the  hands  of  insurgents  in  civil  war  unless  there  is  proven  fault  or 
a  want  of  due  diUgence  on  the  part  of  the  authorities  in  preventing 
the  injury  or  in  suppressing  the  revolution.^ 

1  Brusa  in  17  Annuaire,  132;  Von  Bar  in  31  R.  D.  I.  (1899),  464-481.  The  various 
theories  were  fully  discussed  by  the  Institute  of  International  Law.  17  Annuaire, 
96-137,  18  Annuaire,  47-49,  233-256,  20  Annuaire,  312-319.  See  also  Daniel  An- 
tokoletz  in  28  Rev.  de  Derecho  Hist,  y  Let.  (1907),  307-332;  and  Rougier,  A.,  Les 
guerres  civiles  et  le  droit  des  gens,  Paris,  1903,  466  et  seq. 

^  Wiesse,  Le  droit  international  applique  aux  guerres  civiles,  Lausanne,  1898,  52. 

^  Brusa  in  17  Annuaire,  135.  .    ^y^b^' 

*  FauchUle,  18  Annuaire,  233  et  seq.  ''^ 

^  17  Annuaire,  96.  This  theory,  although  criticized  by  Brusa,  bears  an  intimate 
relation  to  his  own  theory  of  expropriation. 

^  Brusa  also  criticizes  the  doctrine  of  non-liabiUty  based  on  the  theory  of  force 
majeure  on  the  ground  that  the  element  of  will  enters  into  civil  war.  He  also  crit- 
icizes the  theory  of  fault,  which  he  considers  too  difficult  to  prove  in  the  case  of  the 
state. 

'•  This  doctrine  is  supported  by  the  overwhelming  weight  of  authority,  on  the 
part  of  ^^Titers,  of  arbitral  commissions,  and  of  foreign  offices.  See  Hall,  219;  Oppen- 
heim,  223;  Bonfils,  6th  ed.,  195;  Fiore,  Nouveau  dr.  int.,  §  675;  Pradier-Foder6, 
§§204,  205,  1224;  Despagnet,  4th  ed.,  §333,  p.  471;  Bluntschli,  §380  his;  Calvo, 
§§  1280  et  seq.  Calvo's  frequently  quoted  illustration  of  the  British  demands  for 
injuries  sustained  in  the  disturbances  at  Tuscany  and  Naples,  in  1849,  is  baaed  on  a 


UA 


230  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

This  doctrine  is  predicated  on  the  assumption  that  the  government 
is  reasonably  well  ordered/  and  that  revolution  and  disorder  are  ab- 
normal conditions.     "Where  a  state  has  fallen  into  anarchy,  or  the 

misconception  of  the  facts.  See  Moore's  Dig.  VI,  978.  See  also  Calvo  in  1  R.  D.  I. 
(1869),  417;  Anzilotti  in  13  R.  G.  D.  I.  P.  (1906),  305,  and  the  following  special  works: 
Wiesse,  op.  cit.,  42  et  seq.;  Rougier,  op.  cil.,  448  et  seq.;  Sadoul,  Paul,  De  la  guerre  civile 
en  droit  des  gens,  Nancy,  1905, 177  et  seq.;  Breton,  Responsabilit^  des  6tats  en  matifire 
de  guerre  civile  touchant  les  dommages  causes  a  des  ressortissants  etrangers,  Nancy, 
1906.  El  extranjers  en  la  guerra  civil,  by  Luis  A.  Podesta  Costa,  42  Rev.  de  derecho 
hist,  y  let.  (1912),  356-387,  500-524;  43  ibid.  238-242,  published  also  in  book  form, 
Buenos  Aires,  1913;  Non-Uability  of  states  for  damages  suffered  by  foreigners  in  the 
course  of  a  riot,  an  insurrection,  or  a  civil  war  by  H.  Arias  in  7  A.  J.  I.  L.  (1913), 
724-766,  and  an  article  on  the  same  subject  by  Julius  Goebel,  Jr.,  in  8  A.  J.  I.  L. 
(1914),  802,  813-852;  Pennetti,  V.,  Responsabilitel  intemazionale  in  caso  di  revolte 
o  di  guerre  civile,  Napoli,  1899,  24  p. 

The  very  few  writers  who  support  the  contrary  doctrine  of  state  responsibility 
qualify  their  rule  considerably.  Bar,  in  31  R.  D.  I.  (1899),  464;  Brusa  in  17  Annuaire, 
96;  Rivier,  II,  43. 

The  general  rule  has  been  almost  uniformly  applied  by  international  commissions, 
unless  by  the  protocol  their  jurisdiction  was  specially  limited.  See  the  following 
decisions  in  support  of  the  general  rule:  Prats  (Mex.)  v.  U.  S.,  July  4,  1868,  Moore's 
Arb.  2886-2900  (an  exhaustive  discussion  of  principles),  and  other  cases  cited  on 
page  2900;  Pope  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  ibid.  2972;  Schultz  (U.  S.)  v.  Mexico, 
July  4,  1868,  Moore's  Arb.  2973;  Cummings  (ibid.  2977,  opinion  by  Thornton; 
Wadsworth,  American  commissioner,  considered  Mexico  liable  for  the  failure  to  use 
reasonable  efforts  to  suppress  the  disorders) ;  Wyman  {ibid.  2978) ;  Silva  (ibid.  2979) ; 
Divine  (ibid.  2980);  McGrady  (U.  S.)  v.  Spain,  Feb.  12,  1871,  ibid.  2981;  Zaldivar 
(ibid.  2982);  Hanna  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2982-2987; 
Laurie  (ibid.  2987);  Stewart  {ibid.  2989);  Puerto  Cabello  Railway  (Gt.  Brit.)  i;. 
Venezuela,  Feb.  13,  1903,  Ralston,  458;  Aroa  Mines  (Gt.  Brit.)  v.  Venezuela,  ibid. 
381-2;  Grossman  (Gt.  Brit.)  v.  Venezuela,  ibid.  298;  Bolivar  Ry.  (Gt.  Brit.)  v.  Ven- 
ezuela, ibid.  388;  Cobham  (Gt.  Brit.)  v.  Venezuela,  ibid.  409;  Van  Dissel  (Germany) 
V.  Venezuela,  Feb.  13,  1903,  ibid.  565;  Sambiaggio  (Italy)  v.  Venezuela,  ibid.  680 
Guastini  (Italy)  v.  Venezuela,  ibid.  730;  Revesno  el  al.  (Italy)  v.  Venezuela,  ibid.  753 
Guerrieri  (Italy)  v.  Venezuela,  ibid.  753;  De  Caro  (Italy)  v.  Venezuela,  ibid.  810 
Henriquez  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  ibid.  899;  Salas  (Netherlands) 
V.  Venezuela,  ibid.  903.  See  cases  collected  in  Ralston's  International  arbitral  law, 
p.  233  el  seq.  Ralston,  umpire  in  the  Sambiaggio  case,  and  Plumley,  umpire  in  the 
Aroa  Mines  and  Henriquez  cases,  supra,  entered  into  extensive  and  illuminating  dis- 
cussions of  the  subject.  See  also  Strong,  arbitrator  in  Gelbtrunk  (U.  S.)  v.  Salvador, 
For.  Rel.  1902,  876.  The  principle  was  upheld  by  the  Anglo-Chilean  Tribunal  of 
1894  (For.  Rel.  1896,  35),  and  by  the  Spanish  Treaty  Claims  Commission,  Final 
Report,  Sen.  Doc.  550,  61st  Cong.,  2nd  sess.,  pp.  4,  7.  This  last  commission  examined 
the  question  exhaustively,  and  many  learned  briefs  were  submitted.    See  particularly, 

'  Hall,  p.  219. 


GENERAL    PRINCIPLES   AND    THEORY  231 

administration  of  law  has  been  nerveless  or  inefficient,  or  the  govern- 
ment has  failed  to  grant  to  a  foreigner  the  protection  afforded  citizens, 
or  measm-es  within  the  power  of  the  government  have  not  been  taken 

Vols.  2  and  3  of  the  collected  briefs.  In  a  few  cases  awards  were  made  for  injuries 
inflicted  by  insurgents,  based  upon  the  refusal  of  the  Spanish  officials  to  allow  the 
owners  to  remove  their  personal  property  to  a  place  of  safety  (see  also  Rule  3  of 
the  Nicaraguan  Mixed  CI.  Com.  of  1911)  or  upon  wrongful  interference  by  those 
officials  during  the  process  of  such  removal.  Final  Report,  8.  See  also  the  "mob- 
ilizados"  awards  (p.  9)  and  the  Tuinucu  award  (No.  240)  attributed  to  negligence  of 
Spain  in  failing  (not  through  inability)  to  afford  protection  (p.  8).  As  a  rule,  the  gen- 
eral powerlessness  of  Spain  to  protect  Cuban  plantations,  relieved  her  of  UabiUty  for 
injuries  committed  by  the  insurgents. 

Exceptions  to  the  general  principle  were  made  in  the  Venezuelan  Steam  Trans- 
portation Company  case  (U.  S.)  v.  Venezuela,  Jan.  19,  1892,  Moore's  Arb.  1693, 
1723,  although  the  exception  is  greatly  weakened  by  the  absence  of  grounds  for  the 
decision.  (Andrade  wrote  an  excellent  dissenting  opinion  supporting  the  general  rule 
of  non-liability,  pp.  1724-1732.)  See  criticisms  of  the  decision  by  Ralston  and  Plum- 
ley  expressed  in  the  Sambiaggio  and  Aroa  Mines  cases  (supra)  and  printed  in  Ral- 
ston's  International  arbitral  law  and  procedure,  Boston,  1910,  p.  237.  The  Mon- 
tijo  award  (U.  S.)  v.  Colombia,  August  17,  1874,  Moore's  Arb.  1421,  1426,  another 
exception  to  the  rule,  was  based  on  the  U.  S.-New  Grenada  special  treaty  of  guaranty 
of  protection  and  on  the  fact  that  an  amnesty  had  been  given  to  the  rebels.  It  was 
not  decided  on  principle.  In  the  case  of  Easton  (U.  S.)  v.  Peru,  Jan.  12,  1863,  Moore's 
Arb.  1629,  another  exception  to  the  rule,  the  Peruvian  council  of  ministers  had  ad- 
mitted liabiUty.  The  question  of  Peru's  habiUty  for  the  acts  of  revolutionists  seems 
not  to  have  been  discussed. 

The  reason  that  umpire  Duffield  in  the  German-Venezuelan  commission  of  1903 
(case  of  Mohle,  Ralston,  574;  Fulda,  ibid.  561;  Kummerow,  ibid.  559;  Redler,  ibid. 
560  (dictum);  Great  Venezuelan  Railroad,  ibid.  639;  Valentiner,  ibid.  565)  held  Ven- 
ezuela liable  was  based  on  what  he  construed  to  be  an  admission  of  liability  in  the 
protocol  of  arbitration.  Throughout  the  decisions  he  expressed  the  view  that  it  was 
contrary  to  principle,  and  he  confined  it  strictly  to  the  specific  insurrection  covered 
by  the  admission,  and  not  to  any  other  (Van  Dissel,  Ralston,  I,  565,  573),  nor  to  the 
acts  of  guerillas  (Great  Venezuelan  Railroad,  ibid.  639).  The  umpire  of  the  Spanish- 
Venezuelan  commission,  Gutierrez-Otero  (Mena,  Spain  v.  Venezuela,  April  2,  1903, 
Ralston,  931;  Padron,  ibid.  923,  926)  held  that  under  that  protocol  the  interposition 
of  the  general  rule  by  Venezuela  as  a  defense  to  the  claim  was  a  "  technical  objection" 
within  the  inhibition  of  the  protocol.  See  Ralston's  criticism  of  this  view  in  Guastini, 
ibid.  748.  Filtz,  umpire  of  the  French- Venezuelan  commission,  gave  no  reasons  for 
his  decisions,  although  presumably  he  always  considered  that  there  was  an  admission 
of  liability  in  the  protocol. 

The  State  Dept.  and  the  British  Foreign  Office  have  almost  uniformly  maintained 
the  principle  that  a  government  is  not  ordinarily  liable  for  the  acts  of  insurgents  be- 
yond its  control,  if  by  due  dihgence  the  government  could  not  have  prevented  the 
acts  complained  of.    Mr.  Uhl,  Acting  Sec'y  of  State,  to  Mr.  Springer,  July  1,  1895, 


232  THE   DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

to  protect  those  under  its  jurisdiction  from  the  acts  of  revolutionists,"  ^ 
the  general  rule  is  suspended  and  foreign  states  may  not  only  inter- 
vene by  force  for  the  protection  of  their  subjects,  but  may  demand 
indemnities,  whether  the  injuries  were  sustained  at  the  hands  of  the 
government  forces  or  the  insurgents.^  The  mere  fact  that  the  state 
is  subject  to  frequent  revolution  does  not,  however,  affect  the  general 
rule  of  non-liability.^  The  Spanish  Treaty  Claims  Commission,  after 
hearing  lengthy  arguments,  adopted  the  following  rules : 

"In  order  to  recover  for  damages  done  by  insurgents"  claimants 
must  "allege  and  prove  that  at  the  time  and  place  when  and  where  the 
injury  was  done  the  [government]  authorities  could,  by  due  diligence, 
and  should  have  prevented  such  injury." 

"In  order  to  recover  for  damages  done  by  the  [government]  forces" 
it  is  necessary  to  prove  "that  the  acts  done  which  resulted  in  the  injury 
were  done  wantonly  and  unnecessarily."  * 

For.  Rel.  1895,  1216;  Mr.  Hay  to  Mr.  Dudley,  Dec.  7,  1899,  Sen.  Doc.  419,  56th 
Cong.,  1st  sess.  (Gottfried  claim  c.  Peru),  108.  See  also  extracts  in  Moore's  Dig.  VI, 
954-970  and  Wharton,  II,  §§  223-226.  Instructions  of  British  Foreign  Office  to  Min- 
ister in  Colon,  quoted  in  Moore's  Arb.  1728,  Sen.  Doc.  254,  57th  Cong.,  1st  sess.  See 
Peruvian  S.  S.  Huascar  case,  1877,  68  St.  Pap.  745. 

A  few  exceptions  to  the  general  rule  are  contained  in  extracts  printed  in  Moore's 
Dig.  VI,  972  et  seq.  They  are  based  either  on  special  circumstances  or  on  the  theory 
(see  Mr.  Fish  to  Mr.  Foster,  Aug.  15,  1873.  Moore,  VI,  974  and  July  15,  1875,  Moore, 
VI,  980)  that  unrecognized  insurgents  (before  a  state  of  belligerency  exists)  are  sub- 
ject to  the  penal  law,  and  that  the  failure  to  protect  aliens  against  them  or  to  punish 
them  imposes  liabiUty  on  the  constituted  government. 

The  general  rule  is  confii'med  in  numerous  treaties  between  the  states  of  Europe 
and  the  Latin- American  republics  (infra). 

1  Dictum  by  Ralston,  Umpire,  in  Sambiaggio  (Italy)  v.  Venezuela,  Feb.  13,  1903, 
Ralston,  679. 

''Their  very  weakness  in  maintaining  a  stable  government,  has,  in  fact,  often 
been  the  actual  if  not  the  ostensible  reason  for  imposing  liability  on  some  of  the  Latin- 
American  states  for  injuries  sustained  by  aliens  in  civil  war.  See  Pradier-Fod6re, 
§  205,  on  the  right  of  intervention. 

'  Sambiaggio  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  691.     - 

^  Si)ecial  report  of  W.  E.  Fuller,  Spanish  Treaty  Claims  Commission,  C».  P.  O. 
1907,  p.  25.  Rule  4  of  the  Principles  of  allowance.  Final  Report  of  the  (Commission, 
1910,  p.  6.  The  Commission  made  awards  in  two  exceptional  cases  of  the  burning 
of  claimant's  property  by  insurgents  after  the  Spanish  officials  had  unjustifiably  re- 
fused to  allow  the  owners  to  remove  it  to  a  place  of  safety  or  had  wrongfully  pre- 
vented its  removal.  Rodriguez  (No.  479)  and  Thorne  (No.  248),  Final  Report, 
p.  12.  Oovcmment  negligence  was  i)roved  in  Tuinuca  (No.  240),  ibid.  11.  Samuel 
B.  Crandall  in  4  A.  .1.  1.  L.  (1910),  SIS.    Mr.  Uhl  to  Mr.  Springer,  July  1,  1895,  For. 


GENERAL   PRINCIPLES   AND    THEORY  233 

The  burden  of  proof  is  on  the  claimant.^  International  commissions 
have  enforced  this  rule,  notwithstanding  the  difficulty  of  proving 
governmental  negligence.  In  mob  violence  cases,  on  the  other  hand, 
notwithstanding  the  general  rule  of  evidence,  the  government  has 
generally  been  held  to  prove  due  dihgence. 

The  rule  of  non-liability  for  injuries  sustained  in  civil  war  extends  to 
those  inflicted  during  actual  hostilities  or  by  the  agents  or  authorities 
of  the  government  in  the  actual  suppression  of  the  revolution  and  ad- 
mittedly necessary  to  that  end,  but  is  confined  strictly  to  injuries  in- 
flicted in  belligerent  action  against  the  insurgents.  The  titular  govern- 
ment is  accorded  the  free  exercise  of  war  rights.  Thus  it  may,  without 
incurring  liability,  prevent  communication  with  the  revolutionists,"'^ 
provided  the  measure  does  not  violate  the  rules  of  war. 

The  government  is  liable  for  violations  of  the  rules  of  war  and  par- 
ticularly for  wanton  acts  of  pillage  and  incidental  occupation  of  neutral 
property  by  government  soldiers.^    The  legitimate  government  is  not 

Rel.,  1895,  p.  1216.  See  also  Rule  8  of  the  Nicaraguan  Mixed  Claims  Commission 
1911. 

1  RevesDo  et  al.  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  753;  Mr.  Bayard, 
Sec'y  of  State,  to  Mr.  Sutphen,  Jan.  6,  1866,  Moore's  Dig.  VI,  964. 

^  Case  of  brig  Toucan.  Brazilian  indemnity,  Jan.  24,  1849,  Moore's  Arb.  4615. 
A  paper  blockade,  however,  will  not  be  recognized.    Infra,  note  6,  page  234. 

'See  principles  5  and  11  of  the  "Principles  of  Allowance"  of  the  Spanish  Treaty 
Claims  Commission,  Final  Report,  4,  5,  and  awards,  p.  10.  See  Rule  44  of  Lieber's 
Rules,  Halleck,  II,  59.  See  also  Cobham  (Gt.  Brit.)  ;•.  Venezuela,  Feb.  13,  May  7, 
1903,  Ralston,  409;  Upton  (U.  S.)  t-.  Venezuela,  Feb.  17,  1903,  Ralston,  173;  Deebs 
claim  V.  Colombia,  For.  Rel.,  1907, 1,  287;  Anglo-Chilean  Tribunal  decisions.  For.  Rel., 
1896,  35.  Liabilit}'  for  acts  of  government  forces  is  sometimes  admitted  by  treat\^ 
(Treaty  between  Spain  and  Venezuela,  Aug.  12,  1861,  53  St.  Pap.  1051),  and  im- 
plied where  the  government  is  relieved  by  treaty  from  liability  for  acts  of  insurgents. 
Admission  of  Canalejas  in  reference  to  claims  of  the  Powers  v.  Spain,  account  of  in- 
surrection in  Cuba,  39  Clunet  (1912),  675.  See  also  American  Electric  and  Mfg. 
Co.  (U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  35.  (Destruction  by  revolutionists 
of  neutral  property  occupied  by  government  troops).  See  also  Putegnat's  heirs  (U.  S.) 
V.  Mexico,  July  4,  1868,  Moore's  Arb.  3720.  Mr.  Sherman,  Sec'y  of  State,  to  Mr. 
Dupuy  de  Lome,  August  11,  1897,  For.  Rel.  1897,  .520.  After  the  revolution  of  1911. 
China  was  held  liable  practically  as  a  guarantor  for  all  wanton  destruction  by  either 
side,  and  even  for  destruction  of  property  in  the  course  of  belligerent  operations. 
Numerous  awards  were  made  by  the  Arbitrator  of  the  Italian-Peruvian  Commission 
under  protocol  of  November  25,  1899,  arising  out  of  injuries  inflicted  by  government 
troops,  which  he  attributed  to  negligent  failure  to  protect  the  property  of  neutrals. 


234  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

in  general  liable  to  the  neutral  owners  of  property  destroyed  by  the 
government  troops  while  in  the  hands  of  rebels,  for  it  has  then  become 
enemy  property  subject  to  destruction.^  Where  the  government,  how- 
ever, receives  a  benefit  from  neutral  property  taken  from  the  rebels, 
originally  seized  by  the  latter,  equity  requires,  it  has  been  held,  that 
it  should  pay  for  the  property^  and  for  injuries  sustained  by  the  prop- 
erty through  the  unusual  use  to  which  it  has  been  subjected  while  in 
government  hands.^  The  Spanish  Treaty  Claims  Commission  made 
awards  for  the  seizure  and  use  by  Spanish  forces  of  private  property  in 
Cuba,  regardless  of  the  purpose  of  the  appropriation,  whether  to  satisfy 
the  needs  of  the  army  or  to  prevent  its  falling  into  the  hands  of  the 
enemy.  **  The  government  is  bound  to  make  compensation  for  the  use 
of  neutral  vessels  in  its  ports,  and  for  their  detention  for  purposes  of 
the  war.  This  exercise  of  the  right  of  angary  and  embargo  is  often 
regulated  by  treaty.''  A  state  is  also  liable  for  injuries  sustained  by 
aliens  in  closing,  by  proclamation,  a  port  in  the  control  of  the  insurgents,® 
a  violation  indeed  of  the  laws  of  blockade.  In  this  connection,  it  may  be 
noted  that  the  distinction  between  a  state  of  war  and  a  state  of  insur- 
rection has  important  consequences  with  respect  to  foreign  countries,^ 
but  in  the  matter  of  closing  ports  in  the  hands  of  insurgents,  only  an 

Descamps  &  Renault,  Rec.  int.  des  traitds  du  xx*  siecle,  1901,  Chiessa,  p.  707;  Sas- 
sarego,  708;  Sanguinetti,  713;  Vercelli,  717;  Quierolo,  718;  Valle,  721;  and  others. 

1  Barrett  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2900.  See  also  case  of 
Walker,  ibid.  2901. 

2  Mazzei  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  693. 

'  Bonti  (U.  S.)  V.  Mexico,  July  4,  18G8,  Opinions,  718  (not  in  Moore).  Agnoli, 
Italian  commissioner  in  the  Guastini  case,  siipra  (Ralston,  737)  contended  for  the 
construction  that  such  property  was  not  enemy  property,  relieving  government  from 
liabihty  for  its  return. 

■•  The  general  rule  relieves  the  government  of  liability  for  neutral  property  de- 
stroyed to  prevent  its  falling  into  the  enemy's  hands.  Notwithstanding  that  this 
was  the  purpose,  the  Commission  made  awards  if  the  property  was  used  (Final  Re- 
port, 12,  13).    See  also  Rule  4  of  Nicaraguan  Mixed  Claim  Com.,  1911. 

5  Bonfils,  §  328;  Chepica  (Gt.  Brit.)  v.  Chile,  For.  Rel.,  1896,  38. 

"Rule  lb  of  the  Institute,  18  Annuaire,  254,  Wharton,  III,  §361,  Moore's  Dig. 
VII,  §§  1270-1271;  De  Caro  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  810;  Comp. 
Gen.  des  A8i)haltes  (Gt.  Brit.)  v.  Venezuela,  Ralston,  337,  and  authorities  there  cited. 
As  to  illegal  warning  off  from  ports  in  hands  of  insurgents,  see  Boytie  and  Mon- 
mouth (Gt.  Brit.)  V.  U.  S.,  May  8,  1871,  Moore's  Arb.  3923. 

7  Moore's  Dig.  I,  166,  167. 


LIMITATIONS    ON   GENERAL   RULES  235 

effectively  established  blockade  need  be  recognized  by  foreign  powers. 
This  does  not  affect  the  right  of  states,  in  time  of  peace,  and  under 
appropriate  circumstances,  to  designate  the  ports  within  their  control 
which  shall  be  open  or  closed  to  commerce. 

§  94.  Limitations  on  General  Rules.  Effect  of  Recognition,  Continued 
Residence,  Participation  and  Amnesty. 

It  will  now  be  proper  to  examine  certain  limitations  on  the  general 
rules  governing  state  responsibility  for  injuries  occurring  in  civil  war. 
These  arise  out  of  (1)  the  recognition  of  the  belligerency  of  the  insurgents 
by  the  parent  state  or  by  foreign  governments,  or  the  existence  of  actual 
belligerency;  (2)  the  continuation  of  domicil  by  a  foreigner  in  the  terri- 
tory in  insurrection;  (3)  participation  in  the  rebellion  on  the  part  of  a 
foreigner;  and  (4)  the  effect  of  amnesty. 

Recognition,  by  the  parent  government,  of  the  beUigerency  of  in- 
surgents against  it  or  the  existence  in  fact  of  a  state  of  war  releases 
the  state  from  responsibility  for  all  acts  of  the  insurgents  subsequent 
to  the  recognition.  Recognition  by  some  foreign  governments  only, 
operates  as  a  release  as  against  their  subjects,  and  other  non-recognizing 
powers  are  not  necessarily  bound.  Recognition  by  the  parent  govern- 
ment is  usually  tacit  and  indirect  only.  The  rule  that  the  government 
is  responsible  for  such  acts  of  insurgents  as  were  perpetrated  through 
its  own  negligence  is,  therefore,  suspended  by  the  act  of  recognition. 
Formal  recognition  is  not,  however,  necessary  to  raise  insurgency 
to  the  plane  of  belligerency.  Belligerent  rights  may  be  acknowledged 
without  recognition  and  this  is  usually  the  case  on  the  part  of  the  parent 
government.^  In  the  Civil  War,  for  example,  the  non-responsibility 
of  the  United  States  resulted  not  from  the  recognition  of  the  bellig- 
erency, but  from  the  fact  of  belligerency  itself,  whether  recognized 
or  not  by  other  governments.^  The  importance  of  establishing  the 
fact  of  or  a  recognition  of  belligerency  is  therefore  great.  Up  to  that 
point  the  government  may  treat  the  rebels  as  traitors  and  criminals 

1  Mr.  Fish,  Secretary  of  State,  to  Mr.  Foster,  Minister  to  Mexico,  Dec.  16,  1873, 
Moore's  Dig.  VI,  976.  The  Spanish  Treaty  Claims  Commission  took  judicial  notice  of 
the  fact  that  the  insurrection  in  Cuba  passed  from  the  first  beyond  the  control  of 
Spain,  and  that  war  in  a  material  sense  existed. 

« Prats  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2886. 


236  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

and  apply  to  them  its  penal  law,^  and  is  subject  to  such  responsibility 
as  arises  out  of  a  proven  want  of  diligence  to  prevent  their  acts,  and 
in  some  cases,  it  has  been  held,  out  of  the  failure  to  punish  the  guilty 
offenders."  There  is  some  support  for  the  doctrine  which  has  been 
advanced  that  a  government  can  avoid  responsibility  for  the  acts  of 
insurgents  by  extending  recognition  or  treating  them  in  fact  as  a  bel- 
ligerent party.^  After  recognition  of  belligerency  begins,  the  parent 
government  is  no  longer  liable,  under  any  circumstances,  for  any  of 
the  acts  of  unsuccessful  insurgents,^  nor  for  its  own  failure  to  act  where- 
ever  the  insurgent  power  extends.  If  the  revolutionists  are  success- 
ful, as  will  be  seen,  the  government  created  through  their  efforts  must 
assume  responsibility  for  their  acts.  Recognition  does  not  affect  the 
liability  of  the  parent  government  for  the  acts  of  its  own  agents  and 
authorities.  The  seizure  of  neutral  property  by  regular  government 
forces  or  depredations  by  officered  soldiers  of  the  government  impose 
liability  upon  the  state  at  all  times. 

The  effect  of  a  continuous  residence  by  aliens  in  the  territory  rent 
by  civil  war  is  to  place  them  for  practically  all  purposes  in  the  same  legal 
position  as  nationals.  By  remaining,  they  assume  the  risk  of  injury, 
within  the  limitations  prescribed  by  the  rules  of  war.     No  doctrine 

'  Although  the  government  on  principle  may  treat  rebels  as  it  sees  fit,  the  United 
States  intervened  in  Nicaragua  in  behalf  of  Cannon  and  Groce  (two  American 
adventurers  fighting  with  the  rebels),  demanding  indemnities  for  their  summary 
execution  by  the  parent  government,  on  the  ground  that  the  laws  of  war  had  been 
violated  in  their  execution  without  trial — and  this  notwithstanding  the  fact  that 
the  rebels  were  not  recognized  by  anyone  as  belligerents.  4  A.  J.  I.  L.  (1910),  674; 
35  Law.  Mag.  &  Rev.  (1910),  203. 

*  De  Brissot  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Opinions  of  Commission,  481-482, 
Moore's  Arb.  2949,  2968;  Venezuela  Steam  Transportation  Company  (U.  S.)  v. 
Venezuela,  Moore's  Arb.  1693  (acts  due  to  government  negligence  and  impliedly 
ratified) ;  Montijo  (U.  S.)  v.  Colombia,  Moore's  Arb.  1421  (piratical  acts  of  insurgents 
not  punished).  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Foster,  July  15,  1875,  Moore's  Dig. 
VI,  980.  Cases  of  this  kind,  where  the  uprising  was  for  pohtical  ends,  must  be  con- 
Bidered  as  exceptional. 

'  Rougier,  op.  cit.,  478. 

*  Mr.  Adams,  Minister  to  England,  to  Mr.  Seward,  Sec'y  of  State,  June  14,  1861, 
Moore's  Dig.  VI,  956;  18  Annuaire,  255;  Westlake,  I,  50-57;  Dana's  Wheaton,  note 
15;  Phillimore,  II,  ch.  IV,  p.  20;  G.  G.  Wilson,  Insurgency  and  international  maritime 
law,  1  A.  J.  I.  L.  (1907),  46-60;  Wharton,  I,  §09;  Moore's  Dig.  I,  164  et  scq.;  The 
Three  Friends,  166  U.  S.  1,  63. 


LIMITATIONS   ON    GENERAL   RULES  237 

is  more  strongly  emphasized  by  Latin-American  publicists  than  the 
general  principle  that  aliens  coming  to  and  settling  in  a  country  must 
normally  share  its  fortunes,  and  have  no  claim  to  better  treatment 
than  nationals.  In  the  case  of  injuries  occurring  during  civil  war, 
without  fault  ^  of  the  authorities,  the  United  States  has  been  more 
observant  of  this  principle  than  the  countries  of  Europe.^  In  1888, 
Mr.  Bayard  said: 

"It  is  the  duty  of  foreigners  to  withdraw  from  such  risks  and  if  they 
do  not,  or  if  they  voluntarily  expose  themselves  to  such  risks,  they  must 
take  the  consequences."  ^ 

Such  was  the  position  assumed  by  the  United  States  in  the  Civil  War. 
It  has  been  upheld  by  international  commissions  ^  and  would  under 
ordinary  circumstances  probably  represent  the  position  of  the  United 
States.  To  visit  a  locality  in  a  state  of  insurrection  is  an  assumption 
of  and  voluntary  exposure  to  the  risks  involved.^ 

Aliens  who  participate  in  an  insurrection  should  and  do  generally 
forfeit  the  protection  of  their  own  government.  Ahens  giving  aid  and 
comfort  to  the  Confederates  were  excluded  from  the  right  to  compensa- 
tion before  the  domestic  and  international  commissions  sitting  after 
the  Civil  War.  A  similar  rule  was  applied  in  Colombia  and  other 
Latin-American  repubhcs  in  their  domestic  commissions  and  by  the 
Spanish  Treaty  Claims  Commission.^    Such  participation  is  a  palpable 

'  E.  g.,  Seijas,  IV,  5-17;  507  et  seq.,  Avith  citation  of  numerous  authorities  in  support. 

^Seijas,  III,  311. 

3  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Sutphen,  Jan.  6,  1888,  IMoore's  Dig.  VI,  963. 

*  Strong,  Arbitrator  in  Gelbtrunk  (U.  S.)  v.  Salvador,  For.  Rcl.,  1902,  873,  878; 
Upton  (U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  172,  dictum  by  Bainbridge,  Com- 
missioner; Morris's  Report,  389. 

*  Negrete's  claim  v.  Spain,  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Sutphen,  Jan.  6, 
1888,  Moore's  Dig.  VI,  964;  Patterson  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Moore's  Arb. 
1779;  Decision  of  the  British-Haitian  commission  of  1872,  Baty,  161.  See  Lord 
Granville's  reply  to  British  subjects  resident  in  France  who  protested  against  requisi- 
tions during  the  Franco-Prussian  War.  Atlay's  Wheaton,  §  151,  J;  Phillimore,  II,  6; 
Leval,  Protection  diplomatique,  §§  105,  106. 

•Caldwell  (No.  283)  and  Jova  (No.  122),  where  claimants  admitted  voluntary  en- 
hstment  in  the  Cuban  forces.  But  payments  to  insurgents  for  permission  to  remove 
claimant's  cattle  (Iznaga,  No.  Ill)  or  lumber  (Bauriedel,  No.  239),  being  considered 
necessary,  did  not  affect  claimant's  standing.  S.  B.  Crandall  in  4  A.  J.  I.  L.  (1910), 
822.  The  United  States  interposed  in  the  Cannon  and  Groce  affair  in  Nicaragua, 
supra,  on  the  ground  that  its  citizens  were  denied  the  rights  of  civilized  warfare. 


238  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

forfeiture  of  neutrality.  Several  treaties  between  European  and  Latin- 
American  countries  provide  expressly  that  aliens  taking  part  in  civil 
wars  or  insurrections  or  undertaking  political  office  forfeit  their  ex- 
emptions and  privileges  as  foreigners  and  are  to  be  treated  as  natives.  ^ 

The  effect  upon  the  Uability  of  the  government  of  an  amnesty  to 
the  rebels  is  somewhat  uncertain.  When  the  government  has  treated 
the  rebels  as  criminal  offenders,  and  they  did  not  attain  the  status 
of  revolutionists,  an  amnesty  operates  as  a  pardon  and  constitutes  a 
failure  to  punish  criminals,  a  recognized  ground  of  state  responsibility. 
So  in  the  Montijo  case,  the  umpire.  Bunch,  held  the  government 
liable,  particularly  because  the  grant  of  the  amnesty  deprived  the 
claimant  of  the  power  of  trymg  the  responsible  rebels  for  the  injuries 
inflicted.^  Secretary  Fish  applied  the  same  rule  to  Mexico,  there 
having  been  no  recognition  of  belligerency,^  and,  as  has  already  been 
observed,  the  failure  to  punish  was  one  of  the  principal  grounds  of 
liability  in  the  de  Brissot  and  Venezuelan  Steam  Transportation  Com- 
pany cases  {supra,  p.  218).  The  failure  to  prosecute  the  rebels,  but 
on  the  contrary  their  appointment  to  office  under  the  government, 
was  considered  as  a  tacit  approval  of  their  acts  and  an  assumption  of 
liability  on  the  part  of  the  government."*  In  the  Wenzel  case  before 
the  German-Venezuelan  Arbitration  of  1903,  an  amnesty  unconstitu- 
tionally granted  was  held  without  effect.^ 

1  See,  for  example,  treaty  between  Spain  and  Peru,  July  16,  1897,  Article  5,  89  St. 
Pap.  598.  This  rule  has  been  adopted  in  the  constitutions  and  municipal  law  of  most 
of  the  states  of  Latin- America.    Infra,  §  391. 

^  Although  the  umpire  stated  that  there  was  a  "stronger  reason"  for  holding  Co- 
lombia liable.  (U.  S.  v.  Colombia,  Moore's  Dig.  VI,  974.)  As  a  matter  of  fact,  the 
offenders  rose  to  the  dignity  of  insurgents.  In  the  de  Brissot  case,  Little  drew  a  dis- 
tinction between  acts  of  war  and  lawless  acts  of  armed  bands,  even  acting  with  a 
political  object.  The  failure  to  punish  in  the  latter  case  imposed  Uability  on  the  gov- 
ernment,   (de  Brissot,  Moore's  Arb.  2967). 

3  Moore's  Dig.  VI,  974. 

*  Bovallins  v.  Hedlund  (Sweden)  v.  Venezuela,  March  10,  1903,  Ralston,  952. 
Agnoli,  the  Italian  commissioner  in  Guastini  (Italy),  v.  Venezuela,  Ralston,  730,  737, 
tried  to  show  that  the  extending  of  a  pardon  to  the  Hernandez  revolutionists  and 
giving  them  office  threw  on  the  government  the  responsibility  for  their  acts.  Umpire 
Ralston,  however,  held  Venezuela  not  liable. 

'  Wenzel  (Germany)  v.  Venezuela,  Feb.  13,  1913,  Ralston,  590.  The  inference  la 
that  if  constitutionally  granted  it  would  have  made  the  government  liable. 


INSURGENTS    IN    TEMPORARY    CONTROL    OF   LIMITED   AREAS  239 

In  several  important  cases,  however,  the  granting  of  an  amnesty  to 
rebels  has  been  held  not  to  constitute  an  assumption  of  liability  for  their 
acts.  This  has  been  the  case  in  the  United  States  for  the  acts  of  the 
Confederates,  and  in  Mexico,^  and  on  principle,  appears  to  be  the  better 
rule.  As  a  practical  matter,  it  is  not  always  easy  to  distinguish  between 
a  movement  on  such  a  small  scale  as  to  amount  to  a  conspiracy  or  plot 
against  the  established  government,  punishable  by  municipal  law,  and  a 
general  movement  assuming  the  proportions  of  an  armed  contest  against 
the  government,  of  which  international  law  takes  notice  by  recognizing 
a  status  of  insurgency,  manifested  in  various  ways,  e.  g.,  a  warning  by 
foreign  governments  to  their  subjects  to  abstain  from  participation. 
While  as  a  matter  of  strict  right  the  government  may  treat  the  insur- 
gents as  criminals,  modern  practice  tends  to  regard  them  as  belligerents, 
with  rights  as  such,  provided  they  observe  the  rules  of  legitimate  war- 
fare. 

§  95.  Insurgents  in  Temporary  Control  of  Limited  Areas. 

Much  difficulty  is  created  by  the  case  of  insurgents  controlling  a 
part  of  a  territory  in  insurrection  and  exercising  authority  over  the 
area  they  control.  The  question  has  arisen  in  connection  with  forced 
loans  and  the  collection  of  customs  dues  by  such  temporary  authorities. 
Whether  the  general  government  is  bound  by  their  acts  depends  upon 
the  extent  to  which  they  have  become  de  facto  authorities.^  The  gen- 
eral tests  of  a  de  facto  government  have  already  been  considered  (supra, 
p.  210). 

Secretary  Fish,  in  1873,  asserted  the  liability  of  Mexico  for  forced 
loans  levied  by  insurgents,  basing  the  contention  on  the  stipulation 
of  the  treaty  of  1831  with  Mexico.^  Treaties  of  the  United  States 
with  most  of  the  countries  of  Latin-America  exempt  American  citizens 

'  British-U.  S.  commission  of  1871 ;  French-U.  S.  commission  of  1880;  Devine  (U.  S.) 
V.  Mexico,  July  4,  1868,  Moore's  Arb.  2980,  Opinion  by  Thornton,  umpire. 

2  Wharton,  II,  577,  §  223. 

» Mr.  Fish,  Sec'y  of  State,  to  Mr.  Foster,  Aug.  15,  1873,  Moore's  Dig.  VI,  916;  see 
also  Mr.  Cadwalader  to  Mr.  Foster,  Sept.  22,  1874,  who  did  not  even  base  the  con- 
tention upon  a  treat}'.  Ibid.  917.  Secretary  Evarts  did  not  construe  the  treaty  to 
forbid  forced  loans.  Mr.  Evarts,  Sec'y  of  State,  to  Mr.  Scott,  April  17,  1877,  Moore's 
Dig.  VI,  917. 


240  THE   DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

from  forced  loans,  and  it  is  probable  that  the  general  government  will 
be  held  liable  for  the  exaction  of  such  a  loan  by  de  facto  authorities 
exercising  jurisdiction  over  a  certain  area,  whether  an  insurgent  fac- 
tion or  not.^ 

The  legitimacy  of  the  collection  of  customs  dues  and  other  taxes 
by  insurgents  in  control  of  a  certain  area  depends,  similarly,  upon  the 
extent  to  which  they  are  temporarily  de  facto  authorities.  If  they  are 
in  exclusive  control  the  legitimate  government  has  no  right  to  demand 
second  payment  of  taxes.  "Money  paid  to  the  de  facto  authorities" — 
it  was  said  in  the  case  of  Guastini — "in  the  shape  of  public  dues,  must 
be  considered  as  lawfully  paid,  and  receipts  given  by  them  regarded 
as  sufficient  to  discharge  the  obligations  to  which  they  relate.  Any 
other  view  would  compel  the  taxpayer  to  determine  at  his  own  peril 
the  vaUdity  of  the  acts  of  those  executing  public  functions  in  a  regular 
manner."  ^  The  United  States  has  always  insisted  that  a  payment 
to  de  facto  authorities  releases  the  taxpayer  from  a  second  payment, 
especially  where  made  under  protest.^  Where  the  so-called  insurgents 
have  not  become  actual  de  facto  authorities,  but  have,  nevertheless, 
in  the  character  of  organized  marauders  rather  than  political  factions, 
collected  dues,  the  rule  as  to  second  collections  has  not  been  uniform. 
To  abstain  from  demanding  a  subsequent  payment  to  constituted 
authorities  becomes  rather  a  matter  of  gracious  remission  of  duties 
to  which  the  titular  government  has  a  right.'*    All  the  circumstances 

'  See  case  of  Fowks  v.  Peru,  For.  Rel.,  1901,.  430-434  (although  the  revolutionists 
in  this  case  eventually  became  successful). 

2  Guastini  (Italy)  v.  Venezuela,  Ralston,  750;  Santa  Clara  Estates  (Gt.  Brit.)  v. 
Venezuela,  ibid.  397;  De  Caro  (Italy)  v.  Venezuela,  ibid.  819.  See  the  famous  case  of 
U.  S.  V.  Rice  (the  Castine  collections),  4  Wheaton,  246,  Opinion  by  Story;  MacLeod 
V.  U.  S.  (1913),  229  U.  S.  416,  429.    Supra,  p.  208. 

'  The  compulsion  to  pay  became  important  in  a  case  in  Colombia  where  the  gov- 
ernment by  decree  sought  to  compel  merchants  to  refuse  to  pay  rebels  and,  if  they 
did,  to  pay  the  government  again.  (Moore's  Dig.  VI,  995.)  The  United  States 
remonstrated  against  the  decree.  The  decree  was  then  limited  to  those  who  had 
voluntarily  paid  the  insurgents.  The  United  States  contended  that  this  ms  major 
or  compulsion  was  to  be  presumed  unless  the  contrary  was  shown.  See  also  Suchet 
(France)  v.  Venezuela,  9  R.  G.  D.  I.  P.  (1902),  628;  8  ibid.  57. 

*  Mr.  Adee  to  Mr.  Clancy,  Mar.  6,  1899  (the  Bluefiolds  insurgents).  For.  Rel.,  1899, 
548,  558.  In  France  it  was  held  that  payments  to  agents  of  an  insurrection  do  not 
bind  the  legitimate  government  except  so  far  as  it  admits  this,  and  that  it  alone  was 


SUCCESSFUL  REVOLUTION  241 

particularly  the  de  facto  character  of  the  authorities  collecting  the  duties, 
must  be  considered. 

§  96.  Successful  Revolution. 

A  successful  revolution  stands  on  an  entirely  different  basis.  The 
government  created  through  its  efforts  is  liable  for  the  acts  of  the 
revolutionists  as  well  as  for  those  of  the  titular  government  it  has 
replaced.^  Its  acts  are  considered  as  at  least  those  of  a  general  de 
facto  government,-  for  which  the  state  is  liable  from  the  beginning  of 
the  revolution,  on  the  theory  that  the  revolution  represented  ab  initio 
a  changing  national  wall,  crystallizing  in  the  final  successful  result.' 
Thus  the  government  created  through  a  successful  revolution  becomes 
liable  for  all  services  rendered  to  the  revolutionists.^  The  unlawful 
acts  of  successful  revolutionists  render  the  government  equally  liable.^ 

invested  with  the  right  to  recognize  or  annul  the  acts  of  the  insurgents.    25  Joum.  du 
Dr.  Adm.  (1877),  233. 

1  Bolivar  Railway  Co.  (Gt.  Brit.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  394. 

2  Dix  (U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  7;  Henry  (U.  S.)  v.  Venezuela, 
ibid.  14,  22. 

'  BoUvar  Railway  Co.  supra;  Williams  v.  Bruffy,  96  U.  S.  176.  The  award  of  the 
arbitral  tribunal  (Goode,  U.  S.  commissioner,  dissenting)  in  Didier  (U.  S.)  v.  Chile, 
Aug.  7,  1892,  Shield's  Rep.,  Washington,  1894,  pp.  41,  45,  seems  altogether  erroneous. 
The  claim  was  based  on  a  contract  for  supphes  furnished  in  1816  to  the  successful 
revolutionary  party  of  Gen.  Carrera.  Because  the  protocol  was  concluded  between 
the  Republic  of  Chile  and  the  U.  S.,  the  Commission,  on  demurrer  to  the  jurisdiction, 
dismissed  the  claim  on  the  ground  that  until  1822,  when  Chile  was  first  recognized 
by  the  U.  S.,  "Chile  was  de  jure  under  Spanish  domination  so  far  as  concerned  the 
U.  S."  See  also  Commissioner  Goode's  dissenting  opinion,  ibid.  46-51.  See  the 
awards  of  the  U.  S.-Mexican  commission  of  1868  under  identical  circumstances, 
Moore's  Arb.  1243;  Tchernoff  (op.  cit.,  337)  supports  the  Didier  award. 

^Oteri  claim  v.  Honduras,  For.  Rel.,  1899,  352  (use  of  a  steamer);  Kummerow 
(Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  561;  Redler  (Germany)  v.  Venezuela, 
iUd.  560;  Baaach  and  Romer  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  ibid.  907. 
But  it  is  not  liable  for  miUtary  services  rendered  to  the  legitimate  government  in  sup- 
pression of  the  very  revolution  which  ultimately  became  successful.  Mr.  Blaine, 
Sec'y  of  State,  to  Mr.  Patterson,  April  7,  1890,  Moore's  Dig.  VI,  624.  It  would  seem 
that  the  Cuban  government  is  liable  for  the  acts  of  its  revolutionary  forces  which 
established  the  government.  China  admitted  its  liability  for  the  acts  of  the  revolu- 
tionists which  established  the  Republic. 

5  Hill  (U.  S.)  V.  Peru,  Dec.  4,  1868,  Moore's  Arb.  1655;  Hughes  (U.  S.)  v.  Mexico, 
March  3,  1849,  Moore's  Arb.  2972;  Hayball  v.  Peru,  For.  Rel.,  1901,  427-430;  Fowka 


242  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

The  successful  revolutionists  appear  to  be  bound  from  the  beginning 
of  the  revolution  by  the  stipulations  of  national  treaties,  for  the  viola- 
tion of  which  they  will  be  held  liable  as  successors  to  the  titular  govern- 
ment.^ 

Governments  have  on  numerous  occasions  voluntarily  made  com- 
pensation, as  a  matter  of  policy  rather  than  as  a  matter  of  law,  for  the 
injuries  sustained  by  natives  and  foreigners  during  civil  war,  limited 
generally  to  the  injuries  inflicted  by  government  forces,^  but  some- 
times extended  to  include  the  acts  of  both  parties.^  If  the  nationals 
of  any  other  foreign  country  were  indemnified,  the  United  States  would 
probably  insist  upon  equal  treatment  for  American  citizens.^ 

§  97.  Experience  of  Latin-America. 

Various  states  of  Latin-America,  exposed  as  they  have  been  to  con- 

V.  Peru,  For.  Rel.,  1901,  430-434;  MacCord  ;;.  Peru,  May  17,  1898,  Moore's  Dig.  VI, 
985-990.    (These  were  cases  of  personal  injury  and  unlawful  imprisonment.) 

1  Fowks  claim  v.  Peru,  supra. 

2  Southern  Claims  Commission;  British-American  Commission  of  May  8,  1871; 
French-American  Commission  of  Jan.  15,  1880.  Indemnities  were  paid  to  loyal 
citizens  and  to  foreigners  who  had  not  given  aid  and  comfort  to  the  Confederates. 
Haiti  in  1902  paid  claims  resulting  from  the  burning  and  pillage  of  Petit  Goave,  in 
1902,  by  government  forces.    This  has  been  Haiti's  general  practice. 

^  France  made  payments  for  injuries  during  civil  commotions  in  1830,  1834,  1851. 
1871  (Commune),  1882  (Saida),  and  1893  (Aigues-Mortes).  (Calvo,  III,  §§  1291- 
1293.)  Belgium  made  similar  payments  in  1831,  1836,  and  in  1842,  during  which 
only  the  "needy  ones"  were  provided  for  (Calvo,  §  1294).  Spain  voluntarily  paid 
French  citizens  at  the  end  of  the  Carlist  war  in  1876.  [Despagnet,  4th  ed.  470;  15 
Clunet  (1888),  293.]  The  Khedive  of  Egypt  compensated  those  sustaining  injuries 
during  the  bombardment  of  Alexandria  in  1882.  (Moore's  Dig.  VI,  984;  71  St.  Pap. 
556;  74  St.  Pap.  684.)  Indemnities  paid  by  Morocco  for  damages  during  distur- 
bances in  Morocco.  (Despagnet,  470.)  Latin-American  states  have  occasionally  by 
domestic  commission  voluntarily  made  compensation  for  injuries  suffered  during 
insurrections.  Mexico  in  1860,  51  St.  Pap.  617;  Hayti  in  1884,  76  St.  Pap.  302; 
Venezuela  in  1868,  59  St.  Pap.  1291;  Venezuela  in  1901,  at  the  end  of  the  Castro 
revolution  (For.  Rel.,  1901,  550);  Peru  in  1871  for  the  injuries  incurred  in  the  sacking 
of  Callao  (Moore's  Dig.  VI,  973;  65  St.  Pap.  1247);  and  Colombia  on  several  occa- 
sions: In  1875  (Moore's  Dig.  VI,  981),  seizure  of  certain  steamers  by  insurgents;  by 
certain  decrees  of  1877  and  1878  (68  St.  Pap.  776;  69  ibid.  376);  by  law  of  Aug.  31, 
1886  and  Oct.  11,  1886  (77  St.  Pap.  807,  810);  by  decree  of  Oct.  17,  1903  (98  St. 
Pap.  839).  Mexico  after  the  revolution  of  1911  established  a  Consultative  Claims 
Commission  to  adjudicate  upon  claims. 

*  Mr.  Olney,  Sec'y  of  State,  to  Mr.  Thompson,  Min,  to  Brazil,  Jan.  20  and  Oct.  10, 
1896,  Moore's  Dig.  VI,  892. 


EXPERIENCE    OF    LATIN-AMERICA  243 

stant  revolutionary  movements,  have  on  numerous  occasions  been 
subjected  to  liability  by  the  countries  of  Europe  for  the  injuries  in- 
flicted by  insurgents  or  during  civil  war.  This  has  been  in  part  ex- 
plained by  the  fact  that  the  continuous  state  of  revolutionary  unrest 
takes  these  uprisings  out  of  the  category  of  fortuitious  events,  which 
the  government  is  unable,  by  due  diligence,  to  prevent.^  The  Euro- 
pean nations,  in  supporting  claims  arising  out  of  these  civil  wars,  re- 
gardless of  whether  insurgents  or  authorities  caused  the  injury,^  have 
sometimes  taken  the  ground  that  the  responsibility  of  the  state  is  due 
to  a  lack  of  diligence  in  preventing  or  suppressing  uprisings.  This 
ground  could  hardly  be  general,  for  "the  highest  interests  of  the  state 
are  too  deeply  involved  in  the  avoidance  of  such  commotions  to  allow 
the  supposition  to  be  entertained  that  they  have  been  caused  by  care- 
lessness on  its  part  which  would  affect  it  with  responsibility  towards 
a  foreign  state."  ^  Moreover,  if  they  were  actually  negligent,  that 
fact  would  be  extremely  difficult  to  prove,  and  if  the  claims  rested 
upon  this  ground  alone  few  of  them  could  be  prosecuted  to  payment. 
As  a  matter  of  fact,  the  ground  is,  as  a  rule,  advanced  for  plausibility 
alone,  and  assuming  that  the  government  is  so  organized  that  civil 
commotion  is  only  a  fortuitous  event  and  not  one  invited  by  lack  of 
proper  political  organization,  the  Latin-American  republics  would 
appear  to  deserve  support  in  their  endeavors  to  be  relieved  from  the 
diplomatic  pressure  of  claims  resulting  from  injuries  suffered  in  the 
legitimate  operations  incident  to  civil  war,  or  caused  by  insurgents. 

'  H.  Arias  in  7  A.  J.  I.  L.  (1913),  746.    See  also  LawTence's  Wheaton,  176. 

■^  The  following  have  been  some  of  these  occasions:  France  and  Great  Britain  v. 
Argentine,  1858,  48  St.  Pap.  28;  49  ibid.  1340;  France  v.  Brazil,  22  Clunet  (1895),  925; 
1  R.  G.  D.  I.  P.  (1894),  164,  2  ibid.  (1895),  340;  Belgium,  France,  and  Italy  v.  Ven- 
ezuela (civil  war  of  1892),  2  R.  G.  D.  I.  P.  344;  Great  Britain,  France,  Italy,  Spain, 
Germany  and  U.  S.  v.  Chile  at  the  end  of  the  1891  civil  war,  1  R.  G.  D.  I.  P.  164  and 
171;  2  ibid.  338;  3  ibid.  476;  4  ibid.  416;  Moore's  Arb.  4862,  4930;  Italy  v.  Brazil  after 
war  of  1893,  Documenti  diplomatici,  Brasile  reclami  italiani,  Dec.  6,  1894;  4  R.  G.  D. 
I.  P.  (1897),  403,  463;  Italy  v.  Salvador,  Feb.  4,  1876,  70  St.  Pap.  493;  Italy  v.  Peru, 
Nov.  25,  1899,  Memoria  de  Relaciones  Exteriores,  1900,  645;  Spain  v.  Mexico,  Article 
4  of  treaty  of  1853,  TchernofT,  341;  28  Rev.  de  derecho,  310;  Greece  v.  Salvador,  29 
Clunet  (1902),  656;  Several  powers  v.  Venezuela,  in  1903,  secured  an  admission  of 
liability  in  the  protocols,  supra;  Basdevant  in  11  R.  G.  D.  I.  P.  (1904),  362. 

'  Hall,  6th  ed.,  220;  Fiore,  §  673  et  seq.;  Pillet,  Lea  lois  de  la  guerre,  29;  Wiesse,  op. 
cit.,  §  14;  Leval,  §  103;  Pittard,  281. 


244  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

In  order  to  avoid  this  pressure  of  claims  arising  out  of  civil  wars, 
the  Latin-American  states  have  succeeded  in  concluding  numerous 
treaties  with  European  nations  by  which  the  latter  admit  the  non- 
liability of  the  government  for  injuries  sustained  by  their  subjects 
in  civil  war  at  the  hands  of  revolutionists  or  savage  tribes,  provided 
the  damage  is  not  caused  through  the  fault  or  negligence  of  the  author- 
ities of  the  government.^  The  states  of  Latin- America  have  among 
themselves  concluded  treaties  providing  for  absolute  non-liability, 
whether  the  injuries  sustained  by  their  respective  citizens  are  due  to 
the  acts  of  insurgents  or  legitimate  authorities.^  The  Latin- American 
states  have  resorted  to  other  methods  to  avoid  the  presentation  of 
claims  by  foreigners  for  injuries  sustained  during  civil  war.  Li  the 
resolutions  of  the  Pan-American  Congresses,  in  their  constitutions, 
and  in  their  statutes,  they  have  provided  that  the  alien  taking  part  in 
a  civil  struggle  shall  be  treated  as  a  native  and  shall  lose  his  privileges 
of  alienage.^  These  municipal  regulations  provide  generally  that  the 
alien  shall  have  the  same  civil  rights  as  the  national  and  shall  have  the 
right  to  the  diplomatic  protection  of  his  own  country  only  in  the  event 
of  a  denial  of  justice  after  an  exhaustion  of  local  remedies.^    These 

'  Such  treaties  have  been  concluded  between  France  and  Mexico,  Nov.  27,  1886, 
art.  11  Martens'  Recueil  des  traites,  65,  843;  77  St.  Pap.  1090;  France  and  Colombia, 
May  30,  1893,  For.  Rel.  1894,  200;  84  St.  Pap.  137;  Belgium  and  Mexico,  June  7,  1895, 
art.  15,  Martens,  73,  73;  Belgium  and  Venezuela,  March  1,  1884,  art.  18,  Martens, 
61,  620;  75  St.  Pap.  39;  Germany  and  Colombia,  July  23,  1892,  art.  20,  Martens,  69, 
842;  84  St.  Pap.  144;  Germany  and  Mexico,  Dec.  5,  1882,  art.  18;  Martens,  59,  474; 
Italy  and  Colombia,  Oct.  27,  1892,  art.  21,  Martens,  72,  313;  Italy  and  Mexico, 
Apr.  16,  1889,  Apr.  16,  1890,  art.  12,  Martens,  68,  711,  771;  Italy  and  Venezuela, 
July  19,  1861,  art.  4,  54  St.  Pap.  330;  Spain  and  Colombia,  Apr.  28,  1894,  art.  4, 
Olivart,  Tratados  de  Espana,  11,  64;  Spain  and  Ecuador,  May  23,  1888,  art.  3, 
Olivart,  9,  27;  79  St.  Pap.  632;  Spain  and  Honduras,  Nov.  17,  1894,  art.  4,  Olivart, 
11,  156;  Spain  and  Peru,  July  16,  1897,  art.  4,  Olivart,  12,  348;  4  R.  G.  D.  I.  P.  (1897), 
725;  and  art.  4  of  treaty  of  Aug.  14,  1897,  ibid.  794-797;  Spain  and  Venezuela,  Aug.  11, 
1861,  53  St.  Pap.  1050;  Sweden  and  Mexico,  July  29,  1885,  art.  21,  Martens,  63,  690. 

2  Arias  in  7  A.  J.  I.  L,  (1913),  756;  Podesta  Costa  in  42  Rev.  de  derecho  hist,  y 
lot.  (1912),  511,  note. 

'  This  provision  has  been  incorporated  in  one  or  two  treaties  with  European  coun- 
tries—e.  g.,  Spain  and  Peru,  Aug.  14,  1897,  art.  3,  2  R.  G.  D.  I.  P.  (1895),  342;  4  ibid. 
(1897),  794;  Belgium  and  Venezuela,  March  1,  1884,  art.  8,  Busschere,  A.  de.  Code  de 
trait/'H  .  .  .  interessant  la  Belgique,  Bruxelles,  1897,  II,  434. 

''  These  municipal  provisions  as  well  as  the  treaties  concluded  by  a  few  European 


EXPERIENCE    OF   LATIN-AMERICA  245 

provisions  of  municipal  law,  as  will  be  more  fully  noticed  hereafter, 
have  been  ineffectual  in  relieving  the  states  of  Latin-America  from  the 
fulfillment  of  what  have  been  conceived,  by  the  stronger  powers,  to 
constitute  their  international  obligations. 

countries  with  Latin-American  states  acknowledging  the  principle  of  limited  diplo- 
matic protection  are  discussed,  infra,  §  391.  See  also  article  by  Arias  in  7  A.  J.  I.  L. 
(1913),  757  ei  seq.  The  Institute  of  International  Law  has  declared  itself  as  opposed 
to  the  clauses  of  reciprocal  irresponsibility  on  the  ground  that  they  relieve  states 
from  the  duty  of  protecting  the  foreigner  in  their  territory.  It  believed  that  states 
which,  through  a  series  of  extraordinary  circumstances,  do  not  deem  themselves  to 
be  in  a  position  to  insure  in  a  sufficiently  effective  manner  the  protection  of  foreigners 
in  their  territory,  cannot  withdraw  themselves  from  the  consequences  of  such  a  state 
of  things  except  by  a  temporary  interdiction  of  their  territory  to  foreigners.  (18  An- 
nuaire,  253,  translated  in  Ralston's  International  arbitral  law,  234.) 


CHAPTER  VI 

INTERNATIONAL   RESPONSIBILITY   OF   THE  STATE— Con- 
tinued.   WAR  CLAIMS 

§  98.  Belligerent  and  Private  Rights. 

Any  attempt  to  discuss  the  international  responsibility  of  the  state 
for  injuries  sustained  by  private  individuals  in  time  of  war  immediately 
encounters  the  difficulty  of  establishing  any  definite  rules  in  the  prac- 
tice of  awarding  indemnities  or  compensation  for  private  losses  arising 
out  of  war.  Nevertheless,  an  examination  of  the  subject  in  the  light 
of  precedent  and  principle  may  not  be  without  some  useful  results. 

In  a  general  way,  this  responsibihty  of  the  state  may  be  measured 
by  the  state's  obligation  as  a  belligerent  or  a  neutral  to  observe  the 
rules  of  international  law  and  of  war.  As  it  is  obviously,  however,  be- 
yond present  possibilities  to  undertake  a  detailed  review  of  these  rules — 
which  indeed  have  been  ably  treated  in  numerous  works  on  the  sub- 
ject— the  discussion  here  will  be  confined  to  the  more  important  classes 
of  cases  in  which  pecuniary  claims  have  been  or  are  likely  to  be  brought 
for  injuries  sustained  by  individuals  or  private  property  in  time  of  war. 

At  the  outset  it  may  be  observed  that  in  the  progress  of  time  private 
rights  during  war  have  gained  greater  and  greater  recognition,  coinci- 
dent with  the  narrowing  of  the  sphere  of  belligerent  rights,  the  imposi- 
tion of  more  stringent  rules  for  the  conduct  of  war,  and  the  enlarge- 
ment (until  the  outbreak  of  the  present  European  War)  of  the  rights 
of  neutral  commerce.  It  is  in  the  matter  of  injuries  sustained  l^y  private 
persons  during  war  that  Rousseau's  somewhat  inexact  doctrine  that 
war  is  a  relation  of  state  to  state  and  not  of  man  to  man  has  found 
perhaps  its  greatest  field  for  application,  for  both  in  international  and 
municipal  law  there  has  been  a  marked  and  growing  tendency  to  re- 
lieve individuals  and  their  property  from  the  losses  incident  to  war 
and  to  cast  the  burden  upon  the  state.    While  this  modem  principle 

24(5 


THEORY   OF   COMPENSATION    FOR   WAR    LOSSES  247 

of  state  indemnity  is  to  a  large  extent  a  matter  of  municipal  law  ami 
national  policy  and  equity  only,  international  law  has  endeavored  in 
many  directions  to  preserve  the  immunity  of  private  rights  from  the 
destructive  effects  of  war.  Nevertheless,  although  the  conduct  of  warfare 
has  in  increasing  degree  been  brought  within  definite  rules,  private 
property  rights  necessarily  cannot  be  safeguarded  so  minutely  or  be 
affected  with  the  fine  distinctions  incident  to  civil  affairs.  A  margin 
of  uncertainty  is  hardly  separable  from  a  sphere  of  rights  in  which  so 
much  depends  on  military  necessity. 

§  99.  Theory  of  Compensation  for  War  Losses. 

Before  discussing  the  particular  phases  of  war  claims,  it  seems  de- 
sirable to  take  up  briefly  the  general  question  of  compensation  for  in- 
dividual war  losses.  In  former  times,  no  rules  existed  for  pecuniary 
indemnity  to  individuals  for  war  damages.  In  the  matter  of  the  state's 
duty  to  indemnify  its  own  subjects,  Vattel  appears  to  have  been  the 
first  to  draw  a  distinction  between  the  different  kinds  of  war  losses. 
He  distinguished,  first,  those  caused  by  the  enemy,  for  which  no  in- 
demnity was  due;  and,  secondly,  those  caused  by  the  state  itself.  The 
latter  he  subdivided  into  two  classes:  first,  losses  caused  by  the  volun- 
tary and  deliberate  action  of  the  army  by  way  of  precaution  or  strategy'; 
and,  secondly,  inevitable  accidents  of  war  caused  either  by  stress  of 
circumstances  or  without  premeditation.  For  losses  coming  within 
the  last  subdivision,  the  state  incurred  no  strict  obhgation,  although,  if 
its  finances  allowed,  it  was  equitably  proper  to  compensate  individuals. 
For  losses  within  the  first  subdivision,  it  was  bound  to  give  indemnities 
at  the  close  of  the  war.^  This  distinction  between  acts  done  volun- 
tarily in  preparation  for  war,  and  injuries  inevitable  or  inflicted  only  by 
imperious  military  necessity  has  been  followed  by  France  and  the  French 
courts  ^  from  the  period  beginning  with  the  French  Revolution,  and 

'  Vattel,  Chitty-Ingraham  ed.,  §  232,  p.  402;  Bentwich,  N.,  Private  property  in 
war,  London,  1907,  41-42;  H.  Rep.  386,  22nd  Cong.,  1st  seas.,  pp.  9-10;  Lawrence's 
Report  on  claims  against  governments,  H.  Rep.  134,  4.3rd  Cong.,  2nd  sess.,  126; 
Nys  (1912  ed.),  Ill,  ch.  XI,  450-462. 

^  Bremond  in  article  "Actes  de  gouvemement,"  5  Rev.  Dr.  Pub.  (1896),  69,  227; 
Meignen,  E.,  La  guerre,  Pillages,  destructions,  dommages,  5th  ed.,  Paris,  1914,  36  p. 
As  to  Italian  law  to  the  same  effect  see  H.  Rep.  134,  43rd  Cong.,  2nd  sess.,  129,  135- 
191;  Tchernoff,  op.  cit.,  309  et  se^ 


248  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

the  principle  of  state  indemnity  has  thus  found  its  way  into  modern 
practice.  Attention  will  be  called  hereafter  to  a  number  of  special 
occasions  on  which  large  voluntary  indemnities  have  been  granted  by 
various  states  to  inhabitants  sustaining  war  losses. 

The  matter  of  exacting  pecuniary  indemnity  on  behalf  of  injured 
private  individuals  from  belligerent  or  neutral  states  violating  the  laws 
of  war  is  of  comparatively  recent  origin.  The  rule  of  indemnity  was 
developed  by  international  commissions  and  domestic  boards  as  the 
only  practical  sanction  for  a  violation  of  those  private  rights  which  in- 
ternational and  municipal  law  have  expressly  sought  to  safeguard.  At 
the  Second  Hague  Conference,  it  was  for  the  first  time  definitely  pro- 
vided (Art.  3  of  Convention  IV) :  first,  that  a  belligerent  in  land  warfare 
who  violates  the  provisions  of  the  Hague  Regulations,  shall,  if  the  case 
demand,  be  liable  to  make  compensation;  and  secondlj^,  that  he  shall  be 
responsible  for  all  acts  committed  by  persons  forming  part  of  his  armed 
forces.^  It  is  probable  that  the  first  rule  extends  to  all  violations  of  the 
laws  of  war  besides  those  included  in  the  Hague  Regulations.  Whether 
the  second  rule  will  serve  hereafter  to  make  the  state  liable  for  the 
wanton  or  unauthorized  acts  of  unoflEicered  soldiers,  for  which,  under  an 
almost  uniform  practice,  the  state  has  heretofore  been  held  not  to  be 
responsible,  is  a  grave  question. 

§  100.  A  State  of  War. 

The  measure  of  private  rights  in  war  and  the  extent  to  which  they 
are  subject  to  belligerent  rights  depends  on  the  existence  of  a  state  of 
war,  and  not  on  a  declaration  of  war  or  a  recognition  of  belligerency. 
The  indicia  of  a  state  of  war  may  be  said  to  be  an  armed  contest  be- 
tween two  states  or  parts  of  the  same  state  conducted  by  regularly 
organized  military  bodies  and  having  an  avowed  political  object  in 
view.     War  may  exist  where  no  battle  has  been  or  is  being  fought,^ 

1  Oppenheim,  2n{l  od.,  II,  300,  ;U9-321.  One  of  the  best  discussions  of  Art.  3  of 
Convention  IV  is  to  be  found  in  a  small  work  by  Cuno  Hofer,  Der  Schadenersatz  im 
Landkriegsrecht,  Tubingen,  1913,  91  p. 

The  Institute  of  International  Law  at  its  Oxford  meeting  of  1913,  proposed  to 
extend  the  principle  of  indemnity  to  naval  warfare.  Additional  Article  to  Ilulea 
adopted,  1,5  R.  D.  I.,  n.  s.  (1913),  G77. 

^  Ex  parte  Milligau,  4  Wall.  127,  140.    Upon  the  question  whether  war  exists,  the 


A   STATE    OF   WAR  249 

as  well  as  when  war  has  not  been  declared  nor  belligerency  recognized.' 
War,  then,  is  a  fact,  and  the  rights  and  duties  of  individuals,  as  well  as 
the  exercise  of  belligerent  rights  by  enemy  governments  or  by  parties 
to  a  civil  war  result  from  the  fact  of  belligerency  alone. ^  Thus,  while 
the  Cuban  insurgents  were  never  granted  belligerent  rights,  the  Spanish 
Treaty  Claims  Commission  nevertheless  held  that  war  existed  in  a 
material,  if  not  in  an  international,  sense,  thereby  granting  to  Spain 
and  to  the  insurgents  the  right  to  exercise  belligerent  rights  and  im- 
munity for  such  injuries  to  private  persons  and  property  as  the  laws 
of  war  permit.^  The  determination  that  no  legal  state  of  war  existed 
between  the  United  States  and  France  between  1798  and  1800  was 
vital  to  the  decision  of  the  Court  of  Claims  in  the  French  Spoliation 
claims.^ 

It  is  equally  necessary  to  determine  when  belligerent  rights  end. 
This  is  usually,  though  not  always,  fixed  at  the  date  of  a  treaty  of  peace, 
but  in  fact  a  treaty  is  not  in  effect  until  ratified  and  proclaimed,  and 
belligerent  rights  have  often  been  exercised  (1)  between  the  date  of 
signing  and  ratification,  and  (2)  in  the  case  of  mihtary  forces  in  distant 
colonies,  after  the  date  of  ratification.  If  the  armistice  which  is  usually 
provided  for  in  the  first  case  is  broken,  or  if  in  the  second  case  bellig- 
erent rights  are  exercised  after  knowledge  of  the  cessation  of  the  war  by 
the  military  commanders,  liability  would  seem  to  attach  to  the  offend- 
ing government.' 

courts  must  follow  the  political  departments  of  the  government.  Gray  v.  U.  S.,  21 
Ct.  CI.  340;  Gushing  v.  U.  S.,  22  Gt.  CI.  1.  See  also  G.  G.  Phillimore  in  4  Journ. 
of  the  Soc.  of  Comp.  Leg.  (1902),  128-1.34.  • 

1  The  Prize  Cases,  2  Black,  636,  670;  Teresa  Jeorg  v.  U.  S.,  Spanish  Treaty  CI. 
Com.,  Briefs,  v.  2,  pp.  80,  81. 

-  Hall,  31  and  note.    Prats  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2886,  2888. 

3  Span.  Treaty  CI.  Com.,  Special  Rep.  of  W.  E.  Fuller,  1907,  22;  Sen.  Doc.  308, 
59th  Cong.,  1st  sess.,  26. 

'  Gray  t;.  U.  S.,  21  Ct.  CI.  340;  Gushing  v.  U.  S.,  22  Ct.  CI.  1;  The  French  Spohation 
Claims,  by  Geo.  A.  King,  Sen.  Doc.  964,  62nd  Cong.,  3rd  sess.,  9. 

'  Oppenheim,  329;  Hall,  6th  ed.,  55.5.  The  decisions  of  arbitral  and  other  courts, 
however,  leave  this  question  in  much  uncertainty.  John  (U.  S.)  v.  Gt.  Brit.,  Feb.  8, 
1853,  Moore's  Arb.  3793  (govermnent  held  liable  for  capture  made  after  signing 
of  treaty  of  peace,  on  ground  of  failure  to  notify  the  cessation  of  hostilities  promptl}-)- 
See  also  the  John,  2  Dodson,  336  and  the  Mentor,  1  Rob.  183.  The  Japanese  govern- 
ment ordered  the  release  of  "all  ships  and  their  cargoes  captured  after  Sept.  5, 


250  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

It  is  often  important  to  determine,  on  the  military  occupation  of  a 
town  or  larger  area,  when  belligerent  rights  merge  into  the  more  limited 
rights  of  a  military  occupant.^ 

In  the  case  of  maritime  capture  the  question  has  occasionally  been 
raised  whether  neutral  vessels,  captured  before  the  treaty  of  peace,  can 
be  tried  or  condemned  in  a  prize  court  after  the  conclusion  of  peace. 
Inasmuch  as  title  in  the  captured  vessel,  or  cargo  does  not  pass  until  ac- 
tual condemnation,  there  is  some  ground  for  the  view  that  a  prize,  cap- 
tured but  not  yet  condemned  when  peace  is  concluded,  must  be  released. 
While  the  matter  must  still  be  regarded  as  a  moot  question,  the  weight 
of  authority,  supported  by  the  celebrated  Doelwyk  decision  of  the  Italian 
Prize  Commission,-  favors  the  view  that  the  neutral  prize  may  be  tried 
after  peace  is  concluded.^  Whether  the  prize  may  be  condemned  and 
confiscated  is  more  doubtful.  While  some  eminent  authorities  main- 
tain that  condemnation  after  peace  is  lawful,  inasmuch  as  it  is  a  punish- 
ment for  an  unlawful  act  committed  before  the  peace, ^  the  Italian  court 
in  the  Doelwyk  case  decreed  the  restoration  of  the  vessel  on  the  ground 
that  condemnation  and  confiscation  after  peace  is  unlawful. 

§  101.  Position  of  Aliens  in  Hostile  Territory. 

Without  entering  into  a  discussion  of  the  general  position  of  aliens 
in  time  of  war,  a  subject  which  has  already  received  some  considera- 
tion (supra,  §  46)  it  is  necessary  to  examine  the  principal  burdens  which 

1905"  (the  date  of  the  treaty  of  peace  with  Russia).  Imperial  Ordinance  No.  228, 
November,  1905.  But  see  case  of  the  Sunneherd,  captured  by  a  French  privateer 
after  knowledge  (though  not  official  notification)  of  cessation  of  war.  She  was 
condemned  by  a  F'rench  prize  coiu-t.  Hall,  556,  criticizes  the  decision.  See  also 
PhilUmore,  III,  §  521.  See  also  cases  of  Torres  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's 
Arb.  3798;  Ayama,  ibid.  3804;  Serrano,  ibid.  3805  (where  a  claim  was  allowed); 
and  Revilla,  ibid.  3805. 

'  Meng  (P'rance)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  3689;  Gumbes  v.  An  award 
of  the  commissioners  for  liquidating  the  claims  of  British  subjects  on  France  (1834), 
2  Knapp  P.  C.  Rep.  369;  Maccas  in  20  R.  G.  D.  I.  P.  (1913),  230  el  seq. 

2  Martens,  Recueil,  2nd  series,  v.  28,  66-90. 

^  Oppenheim,  II,  §  436. 

*  Ibid.;  Liszt,  5th  ed.,  374;  Gareis,  2nd  ed.,  258;  Brusa  in  4  R.  G.  D.  I.  P.  (1897), 
157-175,  criticizing  the  Doelwyk  decision;  decision  of  Japanese  Prize  Court  in  the 
Antiope  case.  Hurst  and  Bray's  Russian  and  Japanese  Prize  Cases,  London,  19)3, 
II,  389-402. 


POSITION    OF   ALIENS    IN   HOSTILE   TERRITORY  251 

individuals  in  hostile  territory  must  bear.  A  long  course  of  practice 
and  the  Hague  Regulations  have  given  some  authority  to  certain  rules 
for  the  treatment  of  alien  enemies  in  the  country  of  the  territorial 
sovereign.  But  even  a  departure  from  these  rules,  which  has  occurred 
in  several  instances  during  the  present  European  War,  can  hardly  give 
rise  to  individual  pecuniary  claims  in  law.  The  alien  enemy's  individual 
grievances  are  settled  by  the  treaty  of  peace,  and  if  his  country  should 
happen  to  lose  in  the  war,  he  is  without  redress.  If  his  country  should 
be  the  conqueror,  indemnities  may  be  demanded  from  the  defeated 
nation,  but  his  pecuniary  remedy  then  depends  on  the  bounty  of  his 
own  state.  In  either  case,  he  apparently  has  no  legally  protected  rights, 
so  that  as  between  nations  and  alien  enemies,  the  rules  of  war  have 
only  a  moral  and  not  a  legal  sanction.  If  the  transgressor  of  the  rules 
should  be  victor  in  the  conflict,  no  legal  means  exists  for  compelling 
him  to  accord  redress  to  injured  alien  enemies.  While  he  may  be  held 
more  accountable  to  neutral  aliens,  either  as  victor  or  vanquished,  for 
certain  transgressions  of  the  rules  of  war,  there  are  many  respects  in 
which  neutral  aliens  domiciled  in  enemy  territory  share  the  burdens 
of  war  equally  with  alien  enemies. 

Neutral  aliens  domiciled  in  an  enemy  state,  with  their  propertj'  there 
situated,  are  exposed  to  the  consequence  of  actual  belligerent  opera- 
tions to  the  same  extent  as  subjects  of  the  enemy. ^  This  rule  applies 
not  only  to  aliens  who  permanently  reside  in  a  country,  but  to  those 
who  come  with  knowledge  of  the  existence  of  the  war,  and  particularly 
to  those  who  came  before  the  war  and  continue  to  reside  for  a  period 
longer  than  necessary  for  convenient  departure.  Both  with  respect  to 
his  property  and  his  capacity  to  sue  such  an  alien  is  deemed  an  enemy. - 
Foreign  Offices  and  municipal  and  international  courts  have  frequently 
laid  down  the  rule  that  neutral  property  permanently  situated  in  enemy 

'  Hall,  740;  Bentwich,  29.  The  rule  that  war  makes  subjects  of  one  belUgerent  the 
enemies  of  the  government  and  subjects  of  the  other  is  admitted.  It  applies  equally 
to  civil  and  international  war.  See  also  U.  S.  v.  Cooke  {The  Venice),  2  Wall.  258,  274; 
Mrs.  Alexander's  Cotton,  2  Wall.  419;  Jecker  v.  Montgomery,  18  How.  110;  White  v. 
Burnley,  20  How.  235,  249. 

^  Whiting's  war  powers  under  the  Constitution,  43rd  ed.,  Boston,  1871,  p.  341. 
Society  v.  Wheeler,  2  Gallison,  105.  The  rule  that  aliens  entering  or  continuing 
to  reside  in  enemy  territory  may  be  treated  as  enemies  is  found  in  Grotius,  III,  4, 
§§6,7. 


252  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

territory,  or  property  of  neutrals  who  voluntarily  enter  or  continue  to 
reside  in  belligerent  territory  assumes  the  risks  of  injury  incident  to 
war.^  In  strict  law,  even  the  property  of  loyal  citizens  situated  in 
enemy  territory  is  subject  to  the  casualties  of  war  as  enemy  property.^ 
The  particular  liabilities  to  which  such  property  is  thus  ordinarily  ex- 
posed will  be  examined  presently.  It  is  here  merely  to  be  noted  that 
on  land,  the  fate  of  property  situated  in  belligerent  territory  depends 
not  on  the  nationality  or  loyalty  of  the  owner,  but  on  the  location  of  the 
property.^  The  only  important  qualification  of  this  rule  relates  to 
neutral  property  temporarily  in  the  belligerent  country.  If  this  is  used 
or  destroyed  for  recognized  beUigerent  reasons,  the  owner  is  entitled 

'  Palmerston's  opinion  in  Greytown,  Copenhagen  and  Uleaborg  bombardments. 
Hansard's  Debates,  3rd  series,  v.  146,  pp.  37,  49;  Granville  to  Lord  Lyons,  Jan.  11, 
1871  and  Granville  to  Sackville  West,  March  1,  1871,  Hale's  Rep.,  Appendix,  For. 
Rel.,  1873,  V.  3,  368-370,  65  St.  Pap.  458. 

Mr.  Cass,  Sec'y  of  State,  to  Mr.  Burns,  April  26,  1858,  Moore's  Dig.  VI,  885; 
Mr.  Seward  to  Mr.  Wydenbruck,  Nov.  16,  1885,  ibid.  885;  Mr.  Fish,  Sec'y  of  State, 
to  Mr.  Washburn,  April  28,  1871,  For.  Rel.,  1871,  335;  Mr.  Fish  to  Mr.  Thornton, 
May  16,  1873,  Moore's  Dig.  VI,  890;  Mr.  Fish  to  Mr.  Gibson,  Dec.  30,  1875,  ibid. 
891;  Mr.  Bayard  to  Mr.  O'Connor,  Oct.  29,  1885,  ibid.  891;  Whiting's  war  powers, 
352;  12  Op.  Atty.  Gen.  21;  22  Op.  Atty.  Gen.  315.  See  also  Wharton's  Dig.  Ill, 
§§  352,  353. 

Gallego,  Mesa,  et  al.  v.  U.  S.,  43  Ct.  CI.  444;  Herrera  v.  U.  S.,  222  U.  S.  558. 

Cooke  (U.  S.)  V.  Mexico,  Act  of  March  3,  1849,  Moore  s  Arb.  2659,  2661;  Hag- 
gerty,  ibid.  2665;  Thompson,  ibid.  2669;  Castel  (U.  S.)  v.  Venezuela,  Dec.  5, 1885,  ibid. 
3710;  Foster  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3349;  Costa  (U.  S.)  v.  Mexico, 
ibid.  3724;  Tongue  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3675;  Brook 
(Gt.  Brit.)  V.  U.  S.,  May  8,  1871,  ibid.  3738  (Rule  admitted,  but  award  here  made 
for  property  taken  for  military  use,  because  loyal  citizens  had  been  granted  compensa- 
tion in  similar  cases.  16  Stat.  L.  524).  Same  rule  in  Henderson  (Gt.  Brit.)  v.  U.  S., 
ibid.  3827,  Frazer  dissenting  in  both  cases,  Hale's  Rep.  43,  44;  Laurent  (Gt.  Brit.) 
V.  U.  S.,  Feb.  8,  1853,  ibiil.  2671;  Uhde,  ibid.  2691;  Bacigalupi  (U.  S.)  v.  Chile, 
May  24,  1897,  Report,  1901,  p.  151;  Volkmar  (U.  S.)  v.  Venezuela,  Feb.  17,  1903, 
Ralston,  258,  259;  Upton  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  72;  Orr  and 
Laubenheimer  (U.  S.)  v.  Nicaragua,  For.  Rel.,  1900,  826. 

2  Jaragua  Iron  Co.  v.  U.  S.,  212  U.  S.  297,  306;  Page  v.  U.  S.,  11  Wall.  268;  Prize 
Cases,  2  Black,  635;  The  William  Bagaley,  5  Wall.  377;  U.  S.  v.  Farragut,  22  Wall. 
406;  Green  v.  U.  S.,  10  Ct.  CI.  466;  Gooch  v.  U.  S.,  15  Ct.  C.  281;  Brandon  o.  U.  S., 
46  Ct.  CI.  559. 

'  11  Op.  Atty.  Gen.  405;  12  ibid.  486,  488;  Lawrence's  Wheaton,  .505.  In  practice 
indemnities  are  often  paid  for  such  loyal  citizen's  property  as  may  have  been  used  or 
destroyed  by  the  citizen's  own  state.  See  Southern  Claims  Commission,  Act  of 
March  3,  1871.  16  Stat.  L.  524. 


ENEMY   CHARACTER  253 

to  compensation,  which  is  not  the  case  with  property  permanently  so 
situated.  The  right  to  use  such  neutral  property,  subject  to  payment 
of  compensation,  is  known  as  the  right  of  angary,  quite  analogous  to 
the  right  of  eminent  domain.^ 

§  102.  Enemy  Character. 

The  belligerents  are  entitled  to  exercise  certain  measures  against 
enemy  persons  and  property  from  which  neutrals  are  free;  but  while 
the  rule  as  to  private  property  on  land  is  comparatively  simple,  its  loca- 
tion constituting  the  test  of  enemy  character,  private  property  at  sea  is 
tested  by  other  criteria  to  determine  whether  or  not  it  is  vested  with 
enemy  character.  AccorcUng  to  the  Continental  practice,^  nationality 
is  the  test  of  enemy  character,  so  that  the  subjects  of  the  belligerents 
and  their  property  bear  enemy  character,  whereas  the  subjects  of  neu- 
trals and  their  property  do  not.  But  under  the  Anglo-American  rule, 
in  which  domicil  is  the  test,  regardless  of  nationality,  as  well  as  under 
prescribed  exceptional  circumstances,  subjects  of  the  enemy  state  do 
not  necessarily  bear  enemy  character,  whereas  neutrals  may  by  their 
domicil  or  their  acts  be  properly  considered  as  enemies.  Neither  the 
Second  Hague  Conference  nor  the  London  Naval  Conference  of  1908 
was  able  to  reconcile  these  conflicting  views  concerning  nationality  or 
domicil  as  the  controlling  factors  in  determining  the  neutral  or  enemy 
character  of  individuals  and  their  goods. ^ 

Under  the  Anglo-American  rule,  the  political  character  of  private 
property  at  sea  depends  on  the  commercial  domicil  of  its  owner.'*  This 
differs  from  civil  domicil,  inasmuch  as  it  does  not  require  long-continued 

1  Hall,  741;  Bentwich,  27;  Oppenheim,  §§  364r-367.  Great  Britain  in  purchasing 
neutral  cargoes  in  her  ports  may  be  regarded  as  availing  herself  of  this  right.  A 
more  delicate  question  is  presented  by  the  unlaw'ful  seizure  of  neutral  cargoes  on 
the  high  seas  and  their  subsequent  purchase  when  brought  into  port. 

2  Fiore,  III,  §  1432  et  seq.;  Calvo,  IV,  §  1932  et  seq.;  Bonfils,  §  1343  et  seq. 

'The  recent  British  Aliens  Restriction  (ConsoUdation)  Order,  1914,  §31,  and 
Trading  with  the  Enemy  Proclamation,  No.  2,  clauses  3  and  6  modify  the  general 
rules  as  to  enemy  character.  See  Schuster,  E.  J.,  Effect  of  war  ...  on  commercial 
transactions,  2nd  ed.,  London,  1914,  p.  3-7.  See  also  Page,  Arthur,  War  and  ahen 
enemies,  London,  1914,  ch.  I-IV.    Infra,  p.  00. 

*  Bentwich,  142;  Westlake,  II,  140;  Oppenheim,  II,  §§  88,  90;  Laurent  (Gt.  Brit.) 
V.  U.  S.,  P^eb.  8,  1853,  Moore's  Arb.  2671;  The  Pizarro,  2  Wheaton,  246.  Japan 
appears  to  have  adhered  to  the  principle  of  domicil  in  these  matters. 


254  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

residence  with  an  intention  not  to  return,  but  only  such  a  residence  for 
the  purposes  of  trading  as  makes  a  person's  trade  or  business  "contribute 
to  or  form  part  of  the  resources  of  such  country,  and  renders  it  there- 
fore reasonable  that  his  hostile,  friendly  or  neutral  character  should  be 
determined  by  reference  to  the  character  of  such  country."  '  Such  com- 
mercial domicil  may  differ  from  the  actual  civil  domicil  of  the  owner. 
For  example,  in  Anglo-American  law,  his  house  of  trade  (commercial 
domicil)  may  be  in  neutral  territory  and  the  property  at  sea  emanating 
from  that  house  of  trade  escape  belhgerent  capture,  notwithstanding  his 
civil  domicil  in  enemy  territory.^  The  obverse  rule  has  equal  force.  So 
an  owner  may  have  several  houses  of  trade,  some  in  neutral,  some  in 
enemy  territory,  according  to  which  his  property  may  be  judged.  The 
rule  as  to  commercial  domicil  is  applied  even  to  friendly  subjects.  It 
may  be  added  that  all  goods  on  enemy  vessels  are  presumed  to  be  enemy 
goods  unless  the  contrary  is  proved. 

The  enemy  character  of  a  ship  is  determined  by  its  flag,  regardless  of 
the  nationality  or  domicil  of  the  owner,  provided  she  is  sailing  under  it 
legitimately  according  to  the  municipal  law  of  the  state  of  the  flag.^ 
A  vessel  under  a  neutral  flag,  however,  may  acquire  enemy  character  or 
at  least  forfeit  its  neutral  protection  by  taking  part  in  the  hostilities,  by 
rendering  unneutral  service,  by  carrying  contraband  in  excess  of  the 
permitted  proportions,  by  the  use  of  fraudulent  means  to  evade  just 
capture,  by  breaking  or  attempting  to  break  a  lawfully  established 
blockade,  or  by  forcibly  resisting  visit  and  search."*  Individuals  may 
also  lose  their  neutral  character  by  rendering  unneutral  service  to  either 
belligerent.^    The  questions  involved  in  the  transfer  of  enemy  vessels 

1  Dicey,  Conflict  of  laws,  737.    See  also  supra,  p.  110. 

^  Attention  may  be  called  to  the  peculiar  rule  of  American  prize  law,  according 
to  which  a  partner's  residence  in  the  enemy's  country  will  condenm  his  share  in  a 
house  of  trade  established  in  neutral  territory.    The  Anlonia  Johanna,  1  Wheat.  159. 

'  Oppenheim,  II,  §  89;  Westlake,  II,  147.  Arts.  56  and  57,  Declaration  of  London. 
A  reservation  might,  however,  be  made  to  the  effect  that  the  municipal  law  con- 
ferring the  right  to  fly  the  national  flag  must  not  conflict  with  the  rules  of  inter- 
national law  as  to  transfer  of  flag  in  time  of  war.  See  The  Tommi  and  The  Rothersand, 
condeinned  by  British  prize  court,  Oct.  12,  and  Oct.  15,  1914,  L.  R.  [1914J  Probate, 
251. 

<  Westlake,  II,  153;  Oppenheim,  II,  §§  89,  406. 

'  See  Art.  17  of  Convention  V  of  the  Second  Hague  Conference,  and  Oppenheim, 


WAR   ON    LAND  255 

and  goods  to  a  neutral  flag  in  contemplation  of  or  during  war  have 
found  a  generally  accepted  solution  in  the  rules  formulated  by  the 
London  Naval  Conference  of  1908.^  But  the  fact  that  a  neutral  individ- 
ual furnishes  supplies  or  makes  loans  to  either  belligerent  from  neutral 
territory  does  not  affect  his  neutral  character.  ^ 

§  103.  War  on  Land. 

The  effects  of  war  upon  private  property  on  land  may  now  be  consid- 
ered. It  has  already  been  observed  that  neutral  and  enemy  property 
in  hostile  territory  are  in  general  subject  to  the  same  treatment.  Where 
such  property  is  seized  or  destroyed  for  strategic  reasons  directly  in- 
cident to  beUigerent  action,  the  private  owners  need  not  be  compen- 
sated for  their  losses.^  This  rule  is  based  on  military  necessity,  and  the 
difficulty  of  its  application,  as  will  be  seen  presently,  arises  in  determin- 
ing whether  a  particular  seizure  or  destruction  was  prompted  by  im- 
perious military  necessity  or  constituted  a  deUberate  appropriation 
of  private  property  for  public  use,  although  perhaps  indirectly  connected 
with  beUigerent  purposes.  It  has  been  noted  that  under  certain  cir- 
cumstances neutral  property  merely  temporarily  in  hostile  territory, 
such  as  ships,  may  only  be  seized  on  payment  of  compensation,  under 
the  belligerent  right  of  angary.^ 

II,  §  88.  The  Industrie  (German)  and  The  Quang-nam  (French),  condemned  by 
Japanese  prize  courts  in  Russo-Japanese  war;  Takahashi,  S.,  International  law 
applied  to  the  Russo-Japanese  war,  New  York,  1908,  pp.  732-738. 

1  Articles  55,  56  and  60  of  the  Declaration  of  London;  Oppenheim,  II,  §§  91,  92. 
The  former  conflicting  rules  are  discussed  by  Westlake,  II,  148  et  seq.  See  the  Sophia 
Richners,  61  St.  Pap.  1091.  For  the  opinion  of  the  State  Department  rendered  dur- 
ing the  present  European  War  concerning  the  transfer  of  merchant  ships  during  war, 
see  Sen.  Doc.  563,  63rd  Cong.,  2nd  sess.  Translations  from  the  works  of  leading 
authorities  on  the  question  of  transfer  of  flag  have  been  published  in  pamphlet  form 
by  the  Legislative  Reference  Division  of  the  Library  of  Congress,  1915.  The  Dada 
case  is  now  (March,  1915)  pending  before  a  French  prize  court.  On  that  case,  see  a 
valuable  article  by  Heinrich  Lammasch  in  the  Vienna  Neue  Freie  Presse,  January  22, 
1915.  A  good  discussion  of  the  cases  dealing  with  transfer  of  flag  was  undertaken 
by  Russell  T.  Mount  in  connection  with  The  Tommi  and  The  Rothersand  decisions  of 
the  British  prize  court,  supra,  in  15  Columbia  L.  Rev.  (1915),  327-333. 

2  Art.  18  (a)  of  Convention  V.  See  Dept.  of  State  circular  Aug.  15,  1914,  "Neu- 
trality— contraband — seizure  of  ships  and  cargo." 

3  Bentwich,  27. 

*  Westlake,  II,  119;  Oppenheim,  II,  §§  364,  365.    Neutral  cargo,  even  conditional 


256  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

Injuries  sustained  by  private  property  as  a  direct  result  of  belligerent 
acts — battle,  siege,  bombardment — or  incidental  thereto  are  not 
the  subject  of  indemnification.  The  conduct  of  the  belligerent,  how- 
ever, must  conform  to  the  laws  of  war,  both  in  justification  and  exe- 
cution. Private  losses  thus  sustained  in  war  are  considered  as  due  to 
necessity  and  force  majeure.  Vattel  first  stated  what  has  since  been 
accepted  as  the  correct  grounds  for  the  non-liability  of  the  state  for 
these  war  losses — "the  public  finances  would  soon  be  exhausted"  and 
"these  indemnifications  would  be  liable  to  a  thousand  abuses."  ^  Yet 
as  an  act  of  grace,  as  has  been  remarked,  a  state  may,  after  peace, 
consent  to  compensate  its  subjects  and  even  domiciled  aliens  for  their 
losses,  thus  distributing  the  individual  loss  equitably  over  the  whole 
nation.  As  between  the  belligerents  and  enemy  subjects,  the  treaty  of 
peace  usually  constitutes  a  final  settlement  of  grievances,  even  of  those 
arising  out  of  a  violation  of  the  laws  of  war  to  the  injury  of  enemy 
persons  and  property.  Neutrals,  however,  even  with  respect  to  property 
in  hostile  territory,  retain  the  right  to  make  diplomatic  claims  against 
the  offending  belligerent  for  violations  of  the  laws  of  war. 

While  the  general  rule  as  to  war  claims  is  that  no  compensation  is  due 
to  private  individuals,  on  account  of  injuries  to  their  persons  or  prop- 
erty, resulting  from  legitimate  acts  of  war,  it  is  not  always  easy  to 
determine  what  is  a  legitimate  act  of  war.  The  Hague  Regulations, 
and  instructions  issued  by  nations  to  their  own  armies,  have  estab- 
lished a  set  or  code  of  rules  according  to  which  warfare  shall  be 
conducted.  An  examination  of  numerous  claims  brought  before  mu- 
nicipal and  international  courts,  will,  in  connection  with  the  Hague  Reg- 
ulations, furnish  an  approximate  guide  to  the  general  rules  governing 
compensation  for  injuries  sustained  in  war. 

Compensation  is  not  due  for  damages  sustained  during  actual  mili- 
tary operations,  whether  caused  by  one  belligerent  or  the  other.  Thus 
injuries  sustained  during  hostilities — in  battle  or  siege, ^  in  the  track  of 

contraband,  not  destined  to  enemy  forces,  has  at  times  been  requisitioned  under  pay- 
ment of  compensation. 

'  Vattel,  Bk.  Ill,  ch.  15,  §  232,  p.  402. 

2  Wilson  (U.  S.)  V.  Spain,  Fob.  12,  1871,  Moore's  Arb.  3674;  Blumenkron  (U.  S.) 
V.  Mexico,  July  4,  1868,  ibid.  3669;  Riggs  (U.  S.)  v.  Mexico,  ibid.  3668;  Castel  (U.  S.) 
V.  Venezuela,  Dec.  5,  1885,  ibid.  3710;  Padron  (Spain)  v.  Venezuela,  Apr.  2,  1903, 


WAR   ON   LAND  257 

war/  during  bombardment,-  or  attacks  on  towns,'  and  in  similar  cir- 
cumstances connected  with  tbie  immediate  necessities  of  armed  con- 
flict and  subserving  some  proper  military  end  *  are  not  subject  to  in- 

Ralston,  923;  Petrocelli  (Italy)  v.  Venezuela,  Feb.  13,  1903,  ibid.  762;  Bembelista 
(Netherlands)  v.  Venezuela,  Feb.  28,  1903,  ibid.  900;  Rule  1  of  the  Mixed  Claims 
Commission  of  Nicaragua,  1911,  Managua,  1912.  See  also  Amer.  St.  Pap.,  Claims, 
199,  Feb.  15,  1797. 

1  Vattel,  Bk.  Ill,  ch.  15,  §232;  Oppenheim,  II,  §  151;  U.  S.  v.  Pacific  R.  R.,  120 
U.  S.  233;  Puerto  Cabello  Ry.  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston, 
458;  Bembelista  (Netherlands)  v.  Venezuela,  ibid.  900;  Rule  8  of  Spanish  Treaty 
Claims  Commission,  Final  Report,  Maj"^  2,  1910,  pp.  4-5. 

-  Dutch  bombardment  of  Antwerp  1830,  30  St.  Pap.  212  el  seq.  Numerous  cases 
of  bombardment,  in  which  compensation  by  the  bombarding  belligerent  was  uni- 
formly denied,  are  set  out  in  Moore's  Dig.  VI,  §§  1168-1170.  See  also  Dutrieux 
(France)  f.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  3702;  Cleworth  (Gt.  Brit.)  v.  U.  S., 
May  8,  1871,  ibid.  3675;  Tongue,  ibid.  3675;  Meng  (France)  v.  U.  S.,  Jan.  15,  1880, 
ibid.  3689,  3697;  Perkins  (Gt.  Brit.)  v.  Chile,  Trib.  Anglo-Chileno,  1891,  I,  34; 
Strobel's  report,  Moore's  Arb.  4930-36,  parag.  1  and  18,  For  Rel.,  1896,  35;  Amer. 
Elec.  L.  and  P.  Co.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  36;  Bembelista 
(Neth.)  t'.  Venezuela,  Feb.  28,  1903,  ibid.  901;  Guerrieri  (Italy)  v.  Venezuela,  ibid. 
753.  See,  however,  the  Colin  case,  Germany  v.  France,  1888,  15  Clunet,  241.  For 
limitations  of  the  rule,  see  note  1,  p.  258,  and  1,  p.  259,  infra. 

'  Schultz  (Mex.)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2973;  Wyman  (U.  S.)  v. 
Mexico,  ibid.  2978;  Cleworth  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  ibid.  3675;  Volkmar 
(U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  258. 

*  All  destruction  and  damage  to  enemy  property  for  purpose  of  offense  and  defense 
is  considered  necessary  and  hence  lawful.    Oppenheim,  II,  §  150. 

Soldiers  passing  over  land  in  belligerent  area  and  injuring  crops.  Shattuck  (U.  S.) 
i».  Mexico,  July  4,  1868,  Moore's  Arb.  3668;  Cole  (U.  S.)  v.  Mexico,  ibid.  3670;  Sterl- 
ing (Gt.  Brit.)  V.  U.  S.,  May  8,  1871,  ibid.  3686. 

Cutting  of  timber  to  clear  away  obstructions,  erection  of  fortifications,  etc.,  in  the 
enemy's  country.  Barclay  and  other  cases  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's 
Rep.  50,  Moore's  Arb.  3678. 

Seizure  or  destruction  of  property  for  the  pubUc  welfare.  Heflebower  v.  U.  S.,  21 
Ct.  CI.  229,  237.  See  also  Sen.  Doc.  318,  57th  Cong.,  1st  sess.,  pp.  19,  36,  37;  e.  g., 
destruction  of  buildings  as  sanitary  measure,  Jaragua  Iron  Co.  v.  U.  S.,  212  U.  S. 
297,  306,  and  Hardman  (Gt.  Brit.)  v.  U.  S.,  Aug.  18,  1910,  7  A.  J.  I.  L.,  897.  (The 
arbitral  court  suggested  that  voluntary  payment  might  be  made  by  U.  S.) 

Seizure  and  detention  of  private  enemy  vessel  after  occupation  of  enemy  port,  for 
use  of  army — the  doctrine  of  immunity  of  private  property  not  followed.  Herrera  v. 
U.  S.,  222  U.  S.  558,  572;  Diaz  v.  U.  S.,  222  U.  S.  574;  Costa  (U.  S.)  v.  Mexico,  July  4, 
1868,  Moore's  Arb.  3724. 

Destruction  of  property  useful  to  the  enemy  for  mihtary  purposes.  Cox  (Gt. 
Brit.)  and  Smythe  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3678.  See  also 
Oppenheim,  II,  §  152;  11  Op.  Atty.  Gen.  378;  U.  S.  v.  Pacific  R.  R.,  120  U.  S.  227; 


258  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

demnity,  the  necessary  condition  being  that  such  act  shall  have  been 
in  accordance  with  the  rules  of  war. 

For  example,  in  the  matter  of  bombardment,  definite  regulations 
have  been  established  which  limit  the  principle  of  non-liability.  If  the 
bombardment  is  directed  against  an  unfortified  and  undefended  part 
of  the  town,  or  if  it  may  be  regarded  as  a  wanton  or  unnecessary  act, 
liability  is  incurred.^  The  legal  presumption,  however,  is  in  favor  of 
the  regularity  and  necessity  of  governmental  acts.  The  Hague  Regu- 
lations and  Convention  IV  of  the  Second  Hague  Conference  have  es- 
tablished important  limitations  on  the  justification,  legitimacy,  and 


Magoon's  Rep.  345  and  615;  Cotton  Claims  (Gt.  Brit.)  v.  U.  S^  Moore's  Arb.  3679- 
82.  See  also  Sen.  Doc.  2,  42nd  Cong.,  spec,  sess.;  Giles  (U.  S.)  v.  France,  Jan.  15, 
1880,  Moore's  Arb.  3703  {dictum). 

The  owner  of  property  seized  and  destroyed  to  prevent  its  falling  into  the  hands  of 
the  enemy  is  not  entitled  to  compensation  if  the  danger  was  immediate  and  impend- 
ing, and  its  capture  by  the  enemy  be  reasonably  certain.  Sparhawk  v.  Respublica, 
1  Dallas,  362;  1  Op.  Atty.  Gen.  255;  Final  Report  of  Spanish  Treaty  CI.  Com.  May  2, 
1910,  p.  12;  Cotton  Claims  (Gt.  Brit.)  v.  U.  S.,  Moore's  Arb.  3679.  See  H.  Rep.  262, 
43rd  Cong.,  1st  sess.,  44  et  seq.  Cotton  was  seized  in  the  Southern  states  during 
the  Civil  War  by  the  Union  troops,  as  constituting  resources  of  the  enemy,  and  lia- 
bility denied.  Moore's  Dig.  VI,  895  and  cases  cited  at  p.  901.  But  where  the  dan- 
ger does  not  appear  immediate,  the  destruction  is  regarded  merely  as  the  appropria- 
tion of  private  property  for  public  use  for  which  an  indemnity  is  due.  Infra,  note  2, 
page  262.     The  state  may  and  often  does  waive  its  exemption  from  liability. 

Seizure  of  money  belonging  to  enemies  on  deposit  in  occupied  territory  in  1863 
(probably  unlawful  to-day,  except  as  legal  contributions).  New  Orleans  v.  S.  S.  Co., 
20  Wall.  394. 

Other  acts  of  military  necessity.  Killing  of  animals,  opinion  of  Dec.  22,  1905  of 
Judge  Advocate  Gen.  of  the  Army.  Rowland's  Digest,  250.  See  also  ibid.  251,  253, 
2.54  and  paragraph  15,  Gen.  Orders  100.  Burning  of  cane  by  Spanish  forces  in  Cuba, 
Casanova  (No.  33),  Spanish  Tr.  CI.  Com.  Ibid.,  burning  of  buildings  when  a  legiti- 
mate war  measure,  Sen.  Ex.  Doc.  85,  42nd  Cong.,  2nd  sess.;  Bacigalupi  (U.  S.)  v. 
Chile,  No.  42,  May  24,  1897,  Rep.  of  Commission,  1901,  151. 

Property  destroyed  in  preparation  for  attack  or  defense.  Jardel  (France)  ik  U.  S., 
Jan.  15,  1880,  Moore's  Arb.  3199;  opinion  of  Judge  Adv.  Gen.  May  1,  1906,  Rowland, 
252;  Parham  v.  Justices,  9  Georgia,  341. 

'  Barletta  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  754;  Cuneo  (Italy)  v. 
Chile,  Jan.  4,  1883,  Moore's  Arb.  4929,  Tchernoff,  333.  See  also  obiter  remarks  in 
De  Lemos  (Gt.  Brit.)  v.  Venezuela,  Ralston,  304,  314  (counsel),  319,  and  in  Guerrieri, 
ibid.  753  and  Berabelista,  ilrid.  901;  Pcrrin  v.  U.  S.,  12  Wall.  315,  4  Ct.  CI.  543;  Hall, 
532;  Samoan  claims  arising  out  of  unlawful  bombardment  of  Apia  by  Great  BritaiB 
and  United  States,  II.  Doc.  1257,  02nd  Cong.,  3rd  sess. 


WAR   ON   LAND  259 

conduct  of  bombardment.^  Among  other  limitations,  the  bombard- 
ment of  undefended  towns  is  prohibited;  the  commander  must  endeavor 
to  notify  his  intention  to  bombard;  hospitals,  churches,  schools,  etc., 
must  so  far  as  possible  be  spared;  and  bombardment  for  non-payment 
of  contributions  by  coast  towns  is  prohibited.  In  like  manner,  sub- 
marine mines  should  be  laid  according  to  certain  rules.  ^ 

The  same  principle  which  exempts  the  state  from  liability  for  injuries 
to  private  property  caused  by  military  necessity,  extends  to  the  in- 
cidental and  consequential  results  of  a  state  of  war.  Thus,  interference 
with  business,  prohibitions  of  trade  between  enemy  subjects  and  the 
limitations  upon  the  trade  of  neutrals  with  belligerents  in  the  matter  of 
contraband,  etc.,  the  accidental  destruction  of  innocent  property  by 
misdirected  shots,  arrests  and  detentions  on  suspicion,  and  similar  in- 
juries incidental  to  a  state  of  war  must  be  borne  by  the  individuals  sus- 
taining the  loss  without  a  right  to  compensation.^ 

1  These  rules  are  set  out  in  Oppenheim,  II,  §§  158,  212,  213.  See  also  Rules  of 
the  Institute  of  International  Law,  adopted  at  Oxford,  1913,  Arts.  25  and  27,  15 
R.  D.  I.  n.  s.  (1913),  677. 

2  Failure  of  Turkey  properly  to  notify  neutral  shipping  of  the  laying  of  certain 
contact  mines  in  the  harbor  of  Smyrna  is  the  principal  ground  of  claim  in  the  case  of 
the  Nevada  (U.  S.)  and  Senegal  (France)  v.  Turkey.  Most  of  the  Powers  have  not 
yet  agreed  upon  rules  for  the  laying  of  submarine  mines.  It  is  reported  that  Austria 
has  consented  to  compensate  certain  Italian  subjects  whose  vessels  were  blown  up 
recently  by  floating  mines  in  the  Adriatic.  Neutral  vessels  injured  by  floating  mines 
probably  have  just  claims  against  powers  which  may  be  proved  to  have  sowed  mines 
in  the  open  sea. 

^  On  war  claims  arising  out  of  direct  and  indirect  injuries  to  private  property,  see 
Lawrence's  report  on  war  claims,  etc.,  H.  Rep.  262,  43rd  Cong.,  1st  sess.,  and  Feraud- 
Giraud,  Recours  a  raison  des  dommages  causes  par  la  guerre,  Paris,  1881,  85  p. 
Reprinted  from  La  France  Judiciaire,  Pamphlets,  Dept.  of  State,  v.  I;  Rule  2  of 
Nicaraguan  Mixed  Claims  Commission,  1911.  Thus  the  following  claims  were 
disallowed  as  being  accidents  due  to  a  state  of  war:  burning  of  buildings  as  a  ruse 
to  deceive  the  enemy  (Opin.  of  Judge  Adv.-Gen.,  H.  Rep.  262,  supra,  p.  57);  private 
hens  destroyed  by  capture  of  public  movables  [Barrett  (Gt.  Brit.)  v.  U.  S.,  May  8, 
1871,  Howard's  Rep.  60,  Moore's  Arb.  2900];  firing  guns  across  private  land  (Peabody 
V.  U.  S.,  43  Ct.  CI.  5);  accidental  destruction  of  innocent  property  involved  in  the 
destruction  of  public  stores  and  works  of  the  enemy  [Various  claims  (Gt.  Brit.)  v. 
U.  S.,  May  8,  1871,  Moore's  Arb.  3677];  claims  before  Anglo-Chilean  Tribunal,  1893, 
Duncan,  Reel.  pres.  al.  Trib.  Anglo-Chileno  I,  536;  Hiibner,  ibid.  Ill,  20;  Club 
Ingles,  ibid.  Ill,  47;  Dawson,  ibid.  Ill,  55;  Cesarino  (Italy)  v.  Venezuela,  Feb.  13, 
1903,  Ralston,  770. 

Arrests  and  detentions  on  suspicion.    Hannum  (U.  S.)  v.  Mexico,  July  4,  1868, 


260  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

Unauthorized  pillage  by  uncontrollable  soldiery  has  been  almost  uni- 
formly considered  to  be  a  hazard  of  war  and  to  reUeve  the  government 
from  liability.^  A  similar  principle  governs  the  wanton  destruction  of 
private  property  by  unofficered  soldiers.-  The  claimant  has  the  burden 
of  proving  that  the  injury  was  committed  by  authority  of  commanding 
officers.^ 

Pillage  is  now  formally  prohibited  by  Article  47  of  the  Hague  Regula- 
tions/ and  under  a  broad  interpretation  of  Article  3  of  Convention  IV 
of  the  Second  Hague  Conference,  it  is  not  improbable  that  pillage  by 
unofficered  soldiers  of  a  regular  army  may  be  held  to  cast  responsibility 
upon  the  state.  Even  property  of  enemies  found  on  the  battlefield  may 
no  longer  be  indiscriminately  confiscated  as  booty.^     Only  military 

Moore's  Arb.  3243;  Cramer  (U.  S.)  v.  Mexico,  iUd.  3250;  Forwood  (Gt.  Brit.)  v. 
U.  S.,  May  8,  1871,  Hale's  Rep.  84;  Gatter  (U.  S.)  v.  Mexico,  Moore's  Arb.  3267; 
Jarman  et  al.  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  ibid,  3308.  Thus  a  state  may  tem- 
porarily restrain  the  departure  of  merchant  vessels,  to  insure  the  secrecy  of  naval 
operations.  But  see  Bailey  {The  Labuan),  Gt.  Brit.  v.  U.  S.,  May  8,  1871,  Hale's 
Rep.  171,  Moore's  Arb.  3791.  Where  the  military  detention  is  unnecessarily  long  or 
harsh,  awards  have  been  made.  Berron  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's 
Arb.  3960;  Story  (U.  S.)  v.  Spain,  Feb.  12,  1871,  ibid.  3269;  Bigland  (Gt.  Brit.)  v. 
U.  S.,  May  8,  1871,  Hale's  Rep.  161. 

Interference  with  business  gives  no  right  to  compensation.  Grant  (Gt.  Brit.)  v. 
U.  S.,  May  8,  1871,  Hale's  Rep.  162;  Kerford  and  Jenkins  (Gt.  Brit.)  v.  U.  S.,  Feb.  8, 
1853,  Moore's  Arb.  3788;  Money  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's  Rep.  168; 
Heny  (U.  S.)  i>.  Venezuela,  Feb.  17,  1903,  Ralston,  14,  25;  Dix  (U.  S.)  v.  Venezuela, 
ibid.  7;  Genovese  (U.  S.)  v.  Venezuela,  ibid.  174;  Martini  (Italy)  v.  Venezuela,  Feb.  13, 
1903,  ibid.  819.  Workmen  of  claimants  compelled  to  serve  in  national  guard.  Siempre 
Viva  (U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  3784;  Cole  (U.  S.)  v.  Mexico,  ibid. 
3785,  and  similar  awards  there  cited.  Government  may  order  suspension  of  traffic 
on  railroad  in  war  area  [Great  Venezuelan  R.  R.  (Germany)  v.  Venezuela,  Feb.  13, 
1903,  Ralston,  640]  and  prohibit  traffic  of  certain  residents  with  towns  in  insurrec- 
tion [Longstroth  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3784]. 

1  Antrey  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3672;  Dresch  (U.  S.)  v.  Mex- 
ico, ibid.  3669;  Weil,  ibid.  3671;  Schhnger,  ibid.  3671;  Buentello  (Mexico)  v.  U.  S., 
ibid.  3670;  Cole  (U.  S.)  v.  Mexico,  ibid.  3670;  Claims  of  Great  Britain  v.  Chile,  Sept.  26, 
1893,  La  I'ontaine,  455.    Sen.  Rep.  544,  55th  Cong.,  2nd  sess.,  6. 

2  Rule  3  of  Nicaraguan  Mixed  Claims  Com.  1911;  Barclay  (Gt.  Brit.)  v.  U.  S., 
May  8,  1871,  Moore's  Arb.  3678;  burning  of  Columbia  (Gt.  Brit.)  ;-.  U.  S.,  ibid.  3675. 

3  Weil  (U.  S.)  V.  Mexico,  Moore's  Arb.  3671;  Michel,  ibid.  3670. 

*  Oppenheim,  II,  §§  143,  213.  See  also  Art.  7  of  Convention  IX  of  Second  Hague 
Conference. 

*  See  Art.  14  of  Hague  Regulations  and  Oppenheim,  II,  §  181. 


WAR   ON   LAND  261 

papers,  arms,  horses,  carts,  etc.,  may  be  appropriated  as  booty,  al- 
though experience  has  shown  that  it  is  difficult  to  hold  soldiers  in  check 
and  carry  out  this  regulation  to  the  letter. 

While  the  belligerent  necessity  for  a  particular  destruction  of  private 
property  is  usually  within  the  discretion  of  the  commanding  officer, 
international  commissions  may  pass  upon  the  legitimacy  of  war  meas- 
ures in  a  given  case.^  Thus  awards  have  been  made  on  numerous  oc- 
casions for  wanton  and  manifestly  unnecessary  acts  of  destruction  and 
pillage  by  the  military  forces  of  the  government.-  The  destruction  of 
private  property  in  war  where  no  military  end  is  served  is  illegitimate. 
This  rule  gained  universal  recognition  during  the  nineteenth  century,  and 
it  is  now  expressly  provided  by  Article  23  (g)  of  the  Hague  Regulations 
that  "to  destroy  .  .  .  enemy's  property,  unless  such  destruction  .  .  . 
be  imperatively  demanded  by  the  necessities  of  war,  is  prohibited." 

One  of  the  most  important  results  of  this  codffication  of  the  rules  of 
war  has  been  the  enlargement  of  the  sphere  of  immunity  of  private 
property  on  land  from  the  injurious  consequences  of  the  war.  Vattel, 
as  already  observed,  was  the.  first  to  draw  a  clear  distinction  between 

^  Rule  6  of  Spanish  Treaty  Claims  Commission.  In  Rules  7  and  8  the  Commission 
prescribed  definite  limitations  to  concentration  and  devastation  as  legitimate  war 
measures.    Final  Rep.,  p.  4.    Award  of  the  Commission  in  Tuinucu  v.  U.  S.,  No.  240. 

The  opinion  of  the  military  authorities  as  to  the  necessity  of  a  destruction  is  not 
ordinarily  justiciable  by  the  regular  courts.  Ex  parte  Marais  (1902),  A.  C.  109.  See 
also  Wentworth  v.  U.  S.,  5  Ct.  CI.  309. 

-  Usually  with  respect  to  neutral's  property.  Quotations  from  publicists  and  state 
papers  in  Moore's  Dig.  VI,  §  1037;  Chourreau  (France)  i'.  U.  S.,  Jan.  15,  1880, 
Moore's  Arb.  3705;  Du  Bois  (U.  S.)  v.  Chile,  Aug.  7,  1892,  ibid.  3712;  Moss  (U.  S.)  v. 
Chile,  May  24,  1897  (extending  1892  commission)  Report,  1901,  No.  25;  Rule  5  of 
Span.  Tr.  CI.  Com.;  S.  B.  Crandall  in  4  A.  J.  I.  L.  820;  Award  of  King  Oscar  on 
Samoan  claims  of  Germany  against  Great  Britain  and  United  States,  Convention 
Nov.  7,  1899,  La  Fontaine,  613,  for  unwarranted  military  action;  Strobel's  Report, 
item  V  on  British  claims  against  Chile,  For.  Rel.,  1896,  35  et  seq.,  Moore's  Arb.  4930; 
Shrigley  (U.  S.)  v.  Chile,  Aug.  7,  1892,  Moore's  Arb.  3711-12;  Peruvian  Indemnity, 
Mar.  17,  1841,  Moore's  Arb.  4591;  Willet  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  ibid. 
3743;  Brooks  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3672;  Johnston,  ibid.  3673  (defend- 
ant government  held  to  have  burden  of  proving  damage  necessary) ;  Jeannotat,  ibid. 
3673;  H.  Rep.  386,  22nd  Cong.,  1st  sess.,  14;  Indus  (U.  S.)  v.  Mexico,  Moore's  Arb. 
3718  (violation  of  rules  of  war  by  selUng  captured  vessel  without  determination  of 
prize  courts).  For  extracts  dealing  with  liability  for  violations  of  rules  of  civilized 
rt'arlare,  see  Wharton's  Digest,  II,  §  225.  See  Rule  18  of  the  Rules  of  the  Institute 
of  International  Law  on  Naval  Warfare  adopted  at  Oxford,  1913. 


262  THE  DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

the  injuries  to  property  due  to  imperious  and  immediate  military  neces- 
sity, for  which  compensation  is  not  generally  due,  and  the  more  deliber- 
ate use  of  or  injury  to  private  property  for  some  public  belligerent 
purpose,  analogous  to  eminent  domain,  for  which  the  state  owes  com- 
pensation to  the  individual.^  It  has  not  always  been  easy  to  draw  the 
line  between  imperious  unavoidable  necessity  and  a  deliberate  act  of 
use,  occupation  or  destruction  involving  an  element  of  choice.  Yet  in 
a  general  way,  international  commissions  have  endeavored  to  maintain 
the  distinction  by  making  awards  for  various  kinds  and  degrees  of  ap- 
propriation of  private  property  for  public  belligerent  purposes,  and 
municipal  legislation  and  courts  have  also  recognized  the  distinction. 

§  104.  Appropriation  of  Private  Property. 

A  long  line  of  decisions  has  established  the  principle  that  the  appro- 
priation of  private  property  for  military  purposes  involves  the  responsi- 
bility of  the  state. ^    That  such  a  use  justifies  the  taking  is  uniformly 

»  Vattel,  Bk.  Ill,  ch.  15,  §  232. 

2  Mason  v.  U.  S.,  14  Ct.  CI.  59;  Waters  v.  U.  S.,  4  Ct.  CI.  299;  KimbaU  v.  U.  S.,  5 
iUd.  252;  Heflebower  v.  U.  S.,  21  ibid.  228,  237;  Grant  v.  U.  S.,  1  ibid.  41,  43-44  (a 
leading  case) ;  Sen.  Rep.  544,  55th  Cong.,  2nd  sess.,  6.  The  Court  of  Claims  has  pro- 
ceeded on  the  theory  of  impUed  contract  and  intention  to  pay.  The  U.  S.  Supreme 
Court  leans  more  directly  towards  the  theory  of  eminent  domain.  Mitchell  v.  Har- 
mony, 13  Howard,  113,  134;  U.  S.  v.  Russell,  13  Wall.  36. 

Saulnier  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore  s  Arb.  3715;  Hollenbeck  (U.  S.) 
V.  Costa  Rica,  July  2,  1860,  ibid,  3717  (building  burned  down  in  operations  for  de- 
fending town);  Baker  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3668  (cattle  and  horses 
taken  by  Mexican  army);  Marks  (U.  S.)  v.  Mexico,  ibid.  3722,  Hall,  ibid.  3722;  El- 
liott, ibid.  3720;  Bartlett,  ibid.  3721;  Cole,  ibid.  3721;  The  Macedonian  (U.  S.)  v. 
Chile,  Nov.  10,  1858,  ibid.  1465;  cases  cited  in  Hale's  Rep.  44,  Moore's  Arb.  3688, 
Commission  of  May  8,  1871,  and  Henderson  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's 
Arb.  3728;  Wilkinson,  ibid.  3736;  Braithwaite,  ibid.  3737;  Adlam,  ibid.  2552.  Means 
(France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  3706  (property  destroyed  in  friendly 
territory  to  give  better  range  to  guns);  Labrat  (France)  v.  U.  S.,  ilnd.  3706;  Shrigley 
(U.  S.)  V.  Chile,  Aug.  7,  1892,  ibid.  3712;  Dix  (U.  S.)  v.  Venezuela,  Feb.  17,  1903, 
Ralston,  7;  Kunhardt  (U.  S.)  v.  Venezuela,  ilrid.  63,  69;  Spanish  Treaty  CI.  Com. 
Final  Rep.,  May  2,  1910,  pp.  15-17  (allowances  for  property  used  by  Spanish  au- 
thorities, regardless  of  the  purpose);  Reyes,  No.  153;  Del  Valle,  No.  222,  No.  278; 
Yznaga,  No.  279;  Constancia,  No.  196.  Principles  of  allowance  in  Mixed  Claims 
Commission  in  China,  following  revolution  of  1911. 

See  Act  of  April  9,  1816,  §5  (3  Stat.  L.  261);  Act  of  July  4,  1864  (13  Stat.  L. 
381).    The  Act  of  Mar.  3,  1871  (16  Stat.  L.  .524)  establishing  Southern  Claims  Com- 


APPROPRIATION  OF  PRIVATE  PROPERTY  263 

admitted.  The  rules  relating  to  requisitions  and  contributions  adopted 
at  recent  Hague  Conferences,  which  will  be  examined  presently,  endeavor 
to  give  precision  to  the  practice  of  appropriation  of  private  property  in 
belligerent  territory.  Under  the  present  Hague  Regulations  private 
enemy  real  property  cannot  be  appropriated.  Private  movables  which 
may  serve  as  war  material  may  be  appropriated,  but  they  must  be  re- 
stored at  the  conclusion  of  peace  and  indemnities  paid  (Article  53). 
They  must  be  acknowledged  by  receipt,  and  as  between  the  belligerents, 
the  treaty  of  peace  determines  upon  whom  shall  fall  the  duty  of  mak- 
ing compensation.  Personal  property  other  than  war  material  may  not 
as  a  rule  be  appropriated.  Article  46  provides  that  ''private  prop- 
erty may  not  be  confiscated."  But  under  exceptional  circumstances 
of  necessity,  where  there  is  no  time  for  ordinary  requisitions  of  food, 
etc.,  or  where  the  property  has  been  abandoned  by  its  owner,  the  bellig- 
erent may  properly  seize  it.^  It  has  already  been  noted  that  private 
enemy  property  found  in  belligerent  territory  at  the  outbreak  of  war 
or  brought  into  it  during  the  war  may  not  be  confiscated. 

When  the  invading  belligerent  becomes  a  military  occupant  he  is 
under  still  greater  restrictions  with  respect  to  private  property,  which 
is  subject  to  appropriation  only  under  the  rules  governing  requisitions 
and  contributions.^ 

mission  provided  that  "stores  and  supplies  furnished  by  or  taken  from  loyal  citizens 
in  the  insurrectionary  states  should  be  paid  for."  Conventions  of  July  4,  1868  with 
Mexico,  May  8,  1871  with  Great  Britain,  and  Jan.  15,  1880  with  France  permitted  of 
similar  payments  to  subjects  of  those  countries.  But  where  the  person  or  property 
was  tainted  with  unneutral  character  no  recovery  was  allowed.  Davidson,  No.  66, 
Hale's  Rep.  43.  See  House  Doc.  460,  56th  Cong.,  1st  sess.,  9;  order  of  Sec'y  of  War, 
June  22,  1862,  Moore's  Arb.  1036;  proclamation  of  the  President,  July  13,  1898; 
Sen.  Doc.  318,  57th  Cong.,  1st  sess.,  19.  See  Abandoned  or  Captured  Property 
Act,  March  12,  1863  (12  Stat.  L.  820),  Moore's  Dig.  VI,  901  and  Moore's  Arb.  374.5. 
See  also  LawTence's  Rep.  supra;  Whiting's  war  powers  under  the  Constitution, 
p.  340;  article  by  Wm.  King,  War  claims  for  property,  20  Amer.  Law  Reg.  (1881), 
227,  233.    See  also  a  few  pertinent  extracts  in  Moore's  Dig.  VI,  §  1034. 

*  Oppenheim,  II,  170  et  seq.  See  the  Bulgarian  decree  of  Feb.  25,  1913  to  the 
effect  that  private  real  property  abandoned  by  its  Mussulman  owners  would  become 
the  property  of  Bulgaria.  This  is  contrary  to  Art.  46.  40  Clunet  (1913),  1043.  On 
the  principles  followed  by  Greece  during  the  occupation  of  Salonica  see  Maccas  in 
20  R.  G.  D.  I.  P.  (1913),  230  et  seq. 

*  The  miUtary  occupant's  relation  to  public  property  is  discussed  by  Oppenheim, 
II,  §  134  et  seq. 


264  THE    DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

The  use  and  occupation  of  buildings  or  real  property  in  more  than  a 
temporary  way  and  when  not  impelled  by  overruling  military  ne- 
cessity has  been  held  to  involve  the  responsibihty  of  the  state/  and 
especially  where  the  territory  had  come  into  the  permanent  possession 
of  the  occupying  belligerent.^  Loyal  citizens  in  the  Southern  states 
during  the  Civil  War  were  given  the  right,  under  the  Abandoned  or 
Captured  Property  Acts,  to  sue  for  the  rents  of  their  abandoned  prop- 
erty covered  into  the  Treasury.  It  has  been  held  lawful  to  quarter 
troops  on  and  occupy  the  property  of  active  enemy  subjects.^  Under 
imperious  military  necessity,  a  belligerent  may  without  indemnification 
use  both  public  and  private  buildings  and  convert  them  into  hospitals, 
barracks,  stables  and  fortifications,  as  occasion  requires.* 

The  government  has  been  held  liable  on  numerous  occasions  for  such 
a  use  and  occupation  of  private  neutral  property  as  to  expose  it  spe- 
cially to  the  fire  of  and  destruction  by  the  enemy. ^  This  rule  extends 
only  to  property  occupied  in  advance  of  actual  fighting,  rather  than 
such  as  is  occupied  during  an  attack  or  retreat.  It  is  the  seizure  of 
private  property  for  the  public  use  and  its  loss  and  destruction  while 
so  employed,  that  warrants  an  indemnity  to  the  owner. 

It  has  been  noted  that  when  military  necessity  in  the  presence  of  the 
enemy  demands  the  immediate  destruction  of  property  to  prevent  its 
falling  into  the  enemy's  hands  no  liability  is  incurred  by  the  beUigerent. 

1  H.  Ex.  Doc.  124,  43rd  Cong.,  1st  sess.;  U.  S.  u.  Speed,  8  Wall.  83;  Armendariz 
(Mexico)  V.  U.  S.,  July  4,  1868,  Moore's  Arb.  3722;  Willet  (U.  S.)  v.  Venezuela, 
Dec.  5,  1885,  iUd.  3743. 

■'  Crutchett  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's  Rep.  46,  Moore's  Arb.  3734. 
Other  similar  cases  cited  in  Moore's  Arb.  3735. 

'  German  practice  in  Franco-Prussian  War,  Bentwich,  33.  See  also  Gonzales 
(Mexico)  V.  U.  S.,  July  4,  1868,  Moore's  Arb.  2824;  Opin.  of  Judge  Adv.-Gen.,  How- 
land,  250  and  253.  (In  Civil  War,  residents  in  insurrectionary  states  had  to  prove 
their  loyalty;  in  Philippines,  government  had  to  prove  native's  disloyalty.) 

*  Oppenheim,  II,  §§  136,  140. 

^  Putegnat's  Heirs  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3718,  3720,— 
other  cases  cited  p.  3720;  Bowen  (U.  S.)  v.  Mexico,  ilnd.  3731;  Willet  (U.  S.)  v.  Vene- 
zuela, Dec.  5,  1885,  ilnd.  3743;  Amer.  Elec.  and  Mfg.  Co.  (U.  S.)  v.  Venezuela,  Feb.  13, 
1903,  Ralston,  35;  Petrocelli  (Italy)  v.  Venezuela,  Feb.  13,  1903,  ibid.  762;  Matamoras 
Fire  Claims  (Gt.  Brit.)  v.  Mexico,  52  St.  Pap.  281;  H.  Rep.  386,  22nd  Cong.,  1st  sess., 
3,  9,  12;  3  Stat.  L.  263,  §  9;  3  Stat.  L.  397,  §  1.  See  opinion  of  Judge  Adv.-Gen, 
Sept.  4,  1902,  contra,  Howland,  253. 


APPROPRIATION   OF   PRIVATE    PROPERTY  265 

The  line  between  overruling  necessity  in  the  face  of  immediate  danger 
and  deliberate  destruction  for  the  ultimate  end  of  preventing  its  cap- 
ture by  the  enemy  is  often  exceedingly  vague,  so  that  courts  and  com- 
missions in  numerous  cases  have  considered  such  destruction  under  the 
latter  head  as  an  appropriation  of  private  property  for  the  public  use 
and  have  awarded  indemnities  to  the  o\ATier.^  To  justify  its  destruc- 
tion without  title  to  indemnity,  the  danger  of  its  capture  by  the  enemy 
must  be  immediate  and  impending. 

The  cutting  of  privately-owned  cables  connecting  occupied  territory 
with  neutral  territory,  when  a  military  necessity,  was  considered,  prior  to 
the  First  Hague  Conference,  as  not  to  afford  a  legal  ground  for  a  claim 
to  indemnity.^  The  view  of  the  United  States  was  that  such  cables 
were  exposed  to  the  risks  of  war,  as  was  other  neutral  property,  in  which 
view  it  was  confirmed  by  Article  XV  of  the  Convention  of  March  14, 
1884  for  the  protection  of  submarine  cables,  which  left  the  belligerents 
freedom  of  action.^  But  in  considering  the  claims  for  neutral  cables 
cut  by  United  States  forces  in  Cuba  and  the  Philippines  during  the 
Spanish-American  War,  the  President  recommended  their  payment  by 
Congress  as  a  matter  of  equity,  and  several  claims  were  accordingly 
paid."*  Article  54  of  the  Hague  Regulations  provides  that  cables  con- 
necting occupied  enemy  territory  with  neutral  territory  shall  not  be 
seized  or  destroyed,  except  in  case  of  absolute  necessity,  in  which  event 
the  cables  must  be  restored  at  the  conclusion  of  peace  and  indemnities 
paid.-" 

Embargo,  or  the  detention  of  private  property,  meant  originally  only 
the  detention  of  vessels  in  port.     The  term  has  been  used  in  several 

1  Grant  v.  U.  S.,  1  Ct.  CI.  41;  Wiggins  v.  U.  S.,  3  Ct.  CI.  412;  Mitchell  v.  Harmony, 
13  Howard,  115;  Turner  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3684;  An- 
derson and  Thompson  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2479;  Barringtoii  (U.  S.) 
V.  Mexico,  July  4,  1868,  ibid.  3674;  Bertrand  (France)  v.  U.  S.,  Jan.  1.5,  1880,  ibid. 
3705;  The  Phare  (France)  v.  Nicaragua,  Award  of  French  court  of  cassation,  ijnd. 
4870,  4873. 

2  Atty.  Gen.  Griggs,  22  Op.  Atty.  Gen.  654. 

3  See  also  Art.  5  of  the  U.  S.  Naval  War  Code. 

*  See  quotations  and  citations  in  Moore's  Dig.  VI,  924-926  and  H.  Rep.  8,  57th 
Cong.,  1st  sess.,  pp.  1,  2,  5,  8  and  S.  Doc.  16,  58th  Cong.,  2nd  sess.,  pp.  6,  10,  22,  23. 

*  Oppenheim,  II,  §  214.  See  Rule  54  of  the  Rules  of  the  Institute  of  Interna- 
tional Law  on  naval  warfare  adopted  at  Oxford,  1913. 


266  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

senses:  (1)  as  a  form  of  reprisal  by  which  enemy  merchantmen  in  bel- 
Ugerent  ports  were  formerly  confiscated;  (2)  the  detention  of  vessels  to 
prevent  the  spread  of  important  military  information ;  and  (3)  the  right, 
better  known  as  angary,  to  use  and  if  necessary,  destroy  neutral  vessels 
temporarily  in  a  beUigerent  port.  The  United  States  in  its  treaty  of 
1795  with  Spain  stipulated  that  "Citizens  .  .  .  shall  not  be  liable 
to  any  embargo  or  detention  ...  for  any  military  expedition,  or 
other  public  or  private  purpose  whatever."^  This  inhibition  of  em- 
bargo has  been  held  to  extend  to  property  on  land  as  well  as  to  vessels 
and  their  cargoes.-  In  former  times,  it  was  a  common  practice  for 
belligerents  to  lay  an  embargo  on  enemy  merchantmen  in  their  ports 
at  the  outbreak  of  war.  Article  1  of  Convention  VI  of  the  Second  Hague 
Conference  provides  that  it  is  desirable  that  an  enemy  merchantman  in 
port  be  allowed  freely  to  depart,  and  it  is  probable  that  only  for  grave 
reasons  will  a  belligerent  now  detain  an  enemy  merchantman.  Such 
vessels  as  are  detained  may  not  be  confiscated,  but  must  either  be  re- 
turned, without  indemnity,  at  the  end  of  the  war  or  may  be  requisi- 
tioned on  payment  of  compensation  (Article  2).  The  same  rule  applies 
to  vessels  which  left  their  last  port  before  the  outbreak  of  war,  and 
while  ignorant  of  the  war,  are  met  at  sea  by  a  belligerent  war  vessel 
(Article  3).^  As  in  modern  days  vessels  rarely  remain  ignorant  of  war 
for  any  length  of  time,  this  apparent  exemption  from  capture  is  likely 
to  be  illusory. 
The  right  of  belligerents  in  case  of  necessity,  for  belligerent  purposes, 

'  A  somewhat  similar  clause  is  contained  in  Art.  7  of  the  treaty  of  1828  with  Brazil. 

2  Macias  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  3775;  Thompson,  ibid. 
3779;  Rivas,  ibid.  3780.  The  cases  of  embargo  under  the  decree  of  1869  in  Cuba  are 
discussed  in  Moore's  Arb.  3754  et  seq.  Indemnities  for  similar  embargoes  were  pro- 
vided for  in  the  unratified  Strobel-Figuera  agreement  of  May  3,  1887.  For  the  em- 
bargoes under  decree  of  1896  and  the  embargo  claims  arising  out  of  the  1895-1898 
Cuban  insurrection,  see  Moore's  Dig.  VI,  908-914  and  cases  of  Hernsheim,  No.  297, 
liauriedel,  No.  239,  and  Gato,  No.  171,  before  the  Spanish  Treaty  CI.  Com.  See 
also  Rule  10  of  that  Commission, 

'  Oppenheim,  II,  §§  40,  102a.  See  full  discussion  in  Scott,  Hague  Conferences, 
556-568.  The  United  States  is  not  a  signatory  of  this  convention.  Contrary  to  the 
general  i)ractice,  Turkey,  which  has  not  ratified  Convention  VI,  seized  some  Italian 
vessels  in  Turkish  ports  at  the  outbreak  of  the  Turko-Italian  war  of  1911.  15  R.  D. 
I.  n.  8.  (1913),  577.  On  days  of  grace  for  departure  of  enemy  vessels  in  port  at  out- 
break of  war,  see  suirra,  p.  62. 


REQUISITIONS  AND   CONTRIBUTIONS  2G7 

to  detain,  use,  or  even  destroy  neutral  property  not  vested  with  enem> 
character  is  known  as  the  right  of  angary,  a  modern  development  of  the 
former  jus  angarioe}  The  payment  of  indemnity  is  a  necessary  condi- 
tion of  such  use  of  neutral  property.  The  application  of  this  rule  has 
generally  arisen  through  the  detention,  use  or  destruction  of  neutral 
vessels  temporarily  in  the  ports  of  a  belligerent.^ 

§  105.  Requisitions  and  Contributions. 

Requisitions  and  contributions  are  a  modem  survival  of  the  old  usage 
of  spoliation  and  confiscation.  They  are  levies  of  supplies  and  money 
made  by  a  belligerent  on  the  theory  that  he  may  make  his  enemy  pay 
for  the  continuation  of  the  war.  Thej''  are  imposed  usually  in  territory 
under  military  occupation,  although  requisitions  may  also  be  levied  by 
an  army  on  the  march.  By  municipal  law,  states  often  levy  requisitions 
upon  their  own  subjects,  but  this  is  generally  conditioned  upon  pay- 
ment of  proper  indemnities.  While  the  property  of  neutral  aUens  useful 
for  military  purposes,  such  as  horses  or  automobiles,  is  subject  to  requisi- 
tion, the  national  governments  of  these  aliens  may  properly  insist  upon 
payment  in  cash,  or  else  acknowledgment  by  receipt  with  a  view  to 
future  payment.  It  is  also  proper  to  insist  that  there  be  no  discrimina- 
tory treatment  of  the  subjects  of  any  one  foreign  nation. 

When  exercised  by  a  belligerent  upon  enemy  territory,  the  unre- 
stricted right  of  requisitions  and  contributions  is  too  apt  to  become  an 
indirect  means  of  spoliation,  and  the  Regulations  adopted  at  the  Hague 
Conferences  are  intended,  first,  to  limit  the  right  to  immediate  mihtary 
necessities,  and  secondly,  to  prevent  the  burden  falling  upon  the  individ- 
ual alone,  but  rather  to  distribute  it  equally  over  the  population  as  a 

lOppenheim,  II,  §364;  Westlake,  II,  119;  Hall,  741;  U.  S.  Naval  War  Code, 
Art.  6. 

'-Labuan  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3791;  Ophir  (U.  S.)  v. 
Mexico,  April  11,  1839,  iUd.  3045;  Brig  Splendid  (U.  S.)  v.  Mexico,  ibid.  3714;  Kidder 
(U.  S.)  V.  Mexico,  March  3,  1849,  Opin.  519  (not  in  Moore);  Orr  and  Laubenheimer 
(U.  S.)  V.  Nicaragua,  March  23,  1900,  For.  Rel.,  1900,  824,  829;  The  Moshona  and  the 
Beatrice  (U.  S.)  v.  Great  Britain,  For.  Rel.,  1900,  529-618;  The  Tabasqueno  v.  U.  S., 
For.  Rel.,  1907,  614  (neutral  cargo  is  in  the  same  position  as  the  neutral  vessel);  U.  S. 
('.  Russell,  13  Wall.  623  (implied  contract  in  municipal  law).  See  the  celebrated  case 
of  the  sinking  by  German  troops  of  British  vessels  in  the  Seine,  1870,  in  which  in- 
demnity was  paid.    61  St.  Pap.  575,  600,  611  and  Moore's  Dig.  VI,  904. 


268  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS    ABROAD 

whole.  Article  52  of  the  Hague  Regulations  provides  that  "neither 
requisitions  in  kind,  nor  services,  can  be  demanded  from  localities  or 
inhabitants  except  for  the  needs  of  the  army  of  occupation.  They  must 
be  in  proportion  to  the  resources  of  the  country.  .  .  .  Supplies  in 
kind  shall  as  far  as  possible  be  paid  for  on  the  spot;  if  not,  the  fact  that 
they  have  been  taken  shall  be  established  by  receipts."  ^  In  addition, 
only  the  local  commander,  and  not  individual  officers  or  soldiers,  may 
order  requisitions.  Quartering  is  a  special  kind  of  requisition,  which 
comes  under  the  general  rule. 

The  great  weakness  of  these  Regulations  lies  in  the  fact  that  no  definite 
limitation  is  imposed  upon  a  military  commander,  and  the  owner  of 
private  property  is  only  in  a  little  less  precarious  condition  than  hereto- 
fore. There  is  no  guide  to  what  may  be  considered  "the  needs  of  the 
army  of  occupation,"  and  because  of  the  fact  that  payment  need  be  made 
only  "as  far  as  possible,"  the  right  of  indemnity  is  problematical.  It  is 
true  that  receipts  evidence  the  exaction  of  goods,  but  no  promise  to  pay  is 
implied,  either  by  the  occupant  or  the  occupied  country.  The  treaty  of 
peace  may  settle  the  question  of  payment,  but  if  left  open,  the  owner  is 
dependent  on  the  bounty  of  his  government,  unless  as  in  France  the  law 
provides  that  the  individual  shall  have  an  action  against  the  commune 
for  reimbursement  of  requisitions. - 

Contributions  are  a  further  menace  to  private  property.  They  con- 
sist in  the  levy  of  money  upon  the  inhabitants  of  occupied  territory,  in 
excess  of  the  produce  of  regular  taxes.  The  Hague  Regulations  (Ar- 
ticles 49-51)  have  endeavored  to  prevent  extortionate  demands  amount- 
ing to  spoliation,  by  systematizing  and  limiting  the  right  to  levy  con- 
tributions. They  may  be  levied  for  the  needs  of  the  army  only  or  of  the 
administration  of  the  occupied  territory.  This  is  to  operate  as  a  check 
upon  pillage.    Again,  the  contributions  must  be  levied  on  the  written 

'  Bentwich,  34;  Albrecht,  Requisitionen  von  neutralem  Privateigentuni,  Breslau, 
1912,  p.  1  el  seq.;  Oppenheim,  II,  §  146  et  seq.,  Westlake,  II,  96  et  seq.  C.  N.  Gregory 
in  an  article  in  15  Columbia  L.  Rev.  (1915),  207-227  presents  a  useful  resume  of  the 
views  of  leading  publicists  on  the  subject  of  contributions  and  requisitions. 

^Dalloz,  Supplement  XV,  1895,  p.  459;  21  Journ.  du  Dr.  Administratif  (1873), 
171-187;  37  Clunet  (1910),  255,  case  in  Chile.  A  French  law  of  July,  1909,  makes 
automobiles  the  subject  of  requisition,  regardless  of  the  nationality  of  the  owners. 
See  proceedings  against  John  Morris,  a  British  subject,  noted  in  Jan.  1914,  Journ.  of 
the  Hoc.  of  Comp.  Leg.,  p.  283. 


REQUISITIONS   AND    CONTRIBUTIONS  269 

order  and  on  the  responsibility  of  a  commander-in-chief,  and  not  merely 
of  a  local  commander.  They  must  not  be  imposed  indiscriminately,  but 
must  follow  the  assessment  rolls,  and  receipts  must  be  given.  ^  These 
limitations  upon  the  levy  of  contributions  do  not  prevent  a  belligerent 
from  imposing  fines  upon  inhabitants  who  commit  acts  of  hostility 
against  him,  or  disobey  his  commands.  Under  such  circumstances, 
private  property  may  even  be  confiscated.  This  is  forfeiture,  rather 
than  appropriation.  The  belligerent  may  no  longer  properlj^,  however, 
"inflict  a  general  penalty,  pecuniary  or  otherwise,  on  the  population  on 
account  of  violent  acts  for  which  it  cannot  be  regarded  as  collectively 
responsible."  ^ 

A  belligerent  government  often  levies  forced  loans  upon  its  own  sub- 
jects immediately  before  or  during  the  war,  and  resident  neutrals  are 
equally  hable  to  such  payment.  The  United  States  in  1868  in  a  case  in 
Italy  admitted  that  its  citizens  resident  abroad  are  subject  to  these  ex- 
actions, on  the  condition  that  they  be  levied  on  all  the  inhabitants  im- 
partially and  in  just  proportions.^  On  the  other  hand,  the  United  States 
has  protested  against  the  usage  on  several  occasions,  or  at  least  insisted 
upon  repayment."*  Well-ordered  countries  do  not  levy  forced  loans. 
Mexico  has  resorted  to  the  practice  on  several  occasions,  and  numerous 
claims  of  this  kind  have  come  before  arbitral  commissions  between  the 
United  States  and  Mexico.  The  Commissions  of  1839,  1849  (domestic), 
and  1868  (until  Thornton  became  umpire),  considered  forced  loans  il- 
legal, and  made  awards  in  favor  of  the  claimants.^    When  Thornton 

1  Bentwich,  36;  Oppenheim,  II,  §  148. 

^  Hague  Regulations,  Art.  50;  Bentwich,  37. 

^  Moore's  Dig.  VI,  916.  Although  British  subjects  were  protected  by  treaty 
against  forced  loans,  it  seems  Mr.  Seward  would  have  regarded  their  exemption  as 
a  discrimination  against  U.  S.  citizens  who  enjoyed  no  such  treaty  exemption.  See 
also  McManus  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3411,  3415  and  Rose 
(U.  S.)  V.  Mexico,  ibid.  3417,  3421. 

^  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Buck,  Min.  to  Peru,  May  20,  1886,  Moore's 
Dig.  VI,  918;  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Foster,  Min.  to  Mexico,  Aug.  15,  1873, 
ibid.  917. 

5  Ducoing  (U.  S.)  v.  Mexico,  April  11,  18.39,  Moore's  Arb.  3409;  Homan  (U.  S.)  v. 
Mexico,  March  3,  1849,  ibid.  3409;  Robinson  (U.  S.)  v.  Mexico,  ibid.  3410,  and  other 
cases  cited  on  p.  3410;  Moke  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3411  (opinion  by 
Wadsworth,  Amer.  commissioner).  See  also  Beckman  (GermanjO  v.  Venezuela, 
Feb.  13, 1903,  Ralston,  599  and  De  Caro  (Italy)  v.  Venezuela,  Feb.  13,  1903,  ibid.  818. 


270  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

succeeded  Dr.  Lieber  as  umpire  of  the  1868  commisssion,  he  held  forced 
loans  to  be  legal,  and  provided  they  are  equally  distributed  amongst 
all  the  inhabitants,  without  discrimination  in  the  exaction  or  the  reim- 
bursement between  native  and  foreigner,  even  if  neither  are  repaid, 
there  is  no  ground  of  complaint.^  Transient  aliens  are  not  subject  to 
forced  loans."  Umpire  Thornton  also  expressed  the  opinion  that  treaties 
exempting  the  citizens  of  certain  countries  from  forced  loans  merely 
prevented  a  discriminatory  exaction  against  those  citizens,  but  that 
they  are  subject  to  such  loans  equally  with  other  inhabitants.^  The 
United  States,  in  numerous  treaties  with  foreign  countries,  has  stipu- 
lated for  the  exemption  of  its  citizens  from  forced  loans. 

§  106.  War  at  Sea. 

With  respect  to  war  at  sea,  only  a  few  rules  have  thus  far  been  formu- 
lated at  The  Hague.'*  At  the  London  Naval  Conference  numerous  rules 
were  adopted,  which,  while  reasonable  and  regarded  as  a  restatement  of 
established  law,  have,  as  yet,  failed  of  general  ratification.  As  contrasted 
with  land  warfare,  one  of  the  most  important  phenomena  of  maritime 
war  is  the  difference  between  private  enemy  and  neutral  property.  Not- 
withstanding the  efforts  of  the  United  States,  enemy  merchantmen  and 
enemy  cargo  in  such  vessels  are  still  subject  to  seizure.^  Neutral  prop- 
erty, however,  since  the  Declaration  of  Paris,  enjoys  a  considerable 
range  of  immunity  from  seizure,  which  extends,  in  the  case  '^f  vessels,  to 
enemy  goods  on  board,  with  the  exception  of  contraband,  and  in  the 
case  of  goods,  exempts  them  from  seizure,  if  not  contraband,  even  under 
the  enemy  flag.  Convention  VIII  of  the  Second  Hague  Conference  pro- 
vides for  certain  methods  of  legitimate  attack  upon  and  capture  of  enemy 

1  McManus  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3411,  3415;  Rose  (U.  S.) 
V.  Mexico,  ibid.  3417,  3421;  Cole,  ibid.  3422  and  cases  cited  p.  3423.  But  he  awarded 
indemnities  when  the  exaction  of  the  loan  was  enforced  by  arrest  and  imprisonment, 
as  he  beUeved  there  must  have  been  means  of  enforcing  payment  by  judicial  proceed- 
ings. 

2  Weil  (U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  3424,  Thornton,  umpire. 
'  Moore's  Arb.  3416. 

*  The  Institute  of  International  Law,  at  its  Oxford  meeting  in  1913,  adopted  a  code 
of  naval  warfare.    15  R.  D.  I.  n.  s.  (1913),  677  et  seq. 

^  The  history  of  private  property  at  sea  is  discussed  by  Oppenheim,  II,  §  176 
and  by  Bentwich,  ch.  VII.    See  also  Loreburn,  R.,  Capture  at  sea,  London,  1913. 


WAR   AT   SEA  271 

merchantmen.  Any  violation  of  these  rules  on  the  part  of  ratifying 
Powers  would  involve  the  responsibility  of  the  state,  and  in  the  case  of 
neutral  property  injured  thereby,  would  give  rise  to  international  rec- 
lamation. Certain  kinds  of  enemy  vessels,  however,  are  immune  from 
seizure,  e.  g.,  those  engaged  in  scientific  discovery,  coast  fishing  boats  and 
small  vessels  engaged  in  local  trade.  ^  Merchantmen  bound  for  enemy 
ports  in  ignorance  of  the  outbreak  of  the  war  may  not  be  confiscated  if 
still  ignorant  at  the  time  of  capture,  but  they  may  be  detained  on  con- 
dition that  thej'  be  restored  at  the  end  of  the  war  or  indemnity  paid  if 
used  or  destroyed.  There  is  no  general  rule  as  to  the  exemption  of  mail- 
boats,  this  matter  being  usually  agreed  upon  in  special  treaties,  but 
enemy  mail  bags  are  immune  from  seizure. - 

Although  neutral  property  enjoys  a  considerable  measure  of  immunity 
from  seizure  it  is  still  in  manj^  respects  subject  to  molestation  in  war,  by 
virtue  of  the  belligerent's  right  of  self-preservation.  The  beUigerent's 
right  of  interference  with  neutral  commerce  falls  under  the  three  heads 
of  contraband,  blockade  and  unneutral  service.  Under  the  first,  he 
may  under  certain  conditions,  confiscate  neutral  property  which  may 
aid  his  enemy  or  interfere  with  his  military  operations;  ^  under  the 
second,  he  may  forbid  neutrals  to  have  any  communication  with  such 
part  of  his  enemy's  maritime  frontier  as  he  can  effectually  watch,  con- 
fiscation being  the  penalty  for  an  attempt  to  run  a  legitimately  estab- 

'  It  seems  that  Turkey  did  not  observe  these  rules  in  her  recent  war  with  Italy, 
15  R.  D.  I.  N.  S.  (1913),  577-578.  Turkey  has  not  ratified  the  Hague  Convention. 
On  the  exemption  of  coast  fishing  vessels  and  the  liability  to  capture  of  deep-sea  fish- 
ing vessels  see  the  recent  decision  of  the  British  prize  court  in  The  Berlin,  L.  R.  [1914] 
Probate,  265,  Oct.  29,  1914  and  a  discussion  on  the  Paquete  Habana  and  other  prize 
cases  by  Russell  T.  Mount  in  15  Columbia  L.  Rev.  (1915),  334-336. 

"  Oppenheim,  II,  §  186.  It  is  obviously  beyond  the  scope  of  this  discussion  to  enter 
into  the  details  of  the  conduct  of  maritime  warfare  and  its  related  questions,  includ- 
ing neutrality.  These  matters  are  fully  discussed  in  the  more  important  works  on 
international  law  and  in  special  treatises. 

^  The  intricate  rules  governing  contraband  carriage,  which  have  been  much  simpli- 
fied by  the  Declaration  of  London,  will  be  found  discussed  in  Oppenheim,  II,  §  391 
and  in  the  special  works  cited  by  him  at  the  head  of  Chapter  IV.  In  a  few  early 
treaties,  it  was  provided  that  contraband  belonging  to  subjects  of  the  other  contract- 
ing party,  could  not  be  confiscated,  but  merely  detained  or  used  in  consideration  of 
payment.  See  treaties  between  U.  S.  and  Prussia,  July  11,  1799  and  May  1,  1828, 
MaUoy,  Treaties,  II,  1490,  1499. 


272  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

lished  blockade;  ^  and  under  the  third,  he  may  forbid  neutral  vessels 
from  rendering  certain  services  which  may  directly  assist  his  enemy.^ 
To  give  effect  to  these  rights,  the  belligerent's  cruisers  may  visit  and 
search,  and  detain  any  suspected  neutral  vessel,  and  his  sanction  is  the 
power  to  confiscate  the  offending  vessel  or  cargo  after  it  has  been  con- 
demned in  the  belligerent's  prize  court.^  By  resistance  to  the  belliger- 
ent's right  of  visit  and  search,  the  neutral  constructively  assumes  enemy 
character  and  becomes  subject  to  capture  and  confiscation.  If  a  sus- 
pected vessel  is  found  innocent  by  a  prize  court  or  administrative  body, 
she  is  only  entitled  to  compensation  if  there  was  no  probable  cause  for 
her  detention.^  The  abuse  by  belligerents  of  the  neutral  rights  of  the 
United  States  constitutes  an  important  chapter  in  the  diplomatic  his- 
tory of  the  United  States,  and  vast  sums  have  been  collected,  particu- 
larly from  Great  Britain  and  France,  for  spoliations  upon  neutral 
American  commerce.^ 

The  belligerent  may,  subject  to  the  limitations  established  by  uni- 
formly recognized  practice,  fix  upon  the  articles  which  he  will  regard  as 
contraband,  and  compel  neutrals  to  respect  his  decision,  under  penalty 
of  confiscation.  There  are  certain  international  rules  which  have  been 
adopted  and  have  received  general  sanction  at  recent  Conferences, 
particularly  the  London  Naval  Conference  of  1908,  and  certain  well- 
established  principles  of  prize  law,  which  belligerents  can  disregard  only 
at  the  risk  of  international  reclamation.  For  example,  the  seizure  of 
conditional  contraband  such  as  foodstuffs,  without  evidence  of  its  des- 
tination for  hostile  military  use,  under  a  presumption  that  its  consign- 
ment to  enemy  commercial  ports  is  proof  of  its  intended  military  use, 
is  an  abuse  of  belligerent  and  a  violation  of  neutral  rights  and  has  af- 
forded ground  for  diplomatic  claims.®    Vessels  violating  the  belligerent's 

1  Oppenheim,  II,  §§  368-390. 

2  Ibid.  II,  §§  407-413. 
»  Bentwich,  108. 

*  Ibid.,  109  and  cases  cited.  See  also  the  Easiry  (Gt.  Brit.)  v.  Japan,  Taka- 
hashi,  S.,  International  law  applied  to  the  Russo-Japanese  war,  New  York,  1908, 
pp.  358,  739.  The  discussions  before  the  London  Naval  Conference  on  the  question 
of  indemnities  to  released  ships  (Basis  12)  will  be  found  in  Cd.  4555  (Misc.  No.  5), 
1909,  187-188  and  Renault's  report  on  the  matter,  ibid.  338-339. 

»  See  Moore's  Dig.  VI,  §  1049. 

•  See,  e.  g.,  Arabia  (U.  S.)  v.  Russia,  For.  Rel.,  1904  and  1905,  and  Antiope  (U.  S.)  v. 


WAR   AT  SEA  273 

contraband  regulations  or  his  interpretation,  on  facts  or  law,  of  his 
right  of  capture,  are  tried  in  his  municipal  prize  courts;  but  as  the  deci- 
sions of  these  courts  are  not  necessarily  binding  on  neutral  nations,  the 
latter  have  often  successfully  brought  international  claims  against 
erroneous  condemnations  by  municipal  prize  courts.^ 

Japan,  Russian  and  Japanese  Prize  Cases,  II,  389-402.  Germany  has  been  required 
to  indemnify  the  U.  S.  on  behalf  of  the  owners  of  the  American  ship  William  P.  Frye, 
sunk  in  mid-ocean  by  the  converted  cruiser  Prim  Eitel  Friedrich  on  the  assumption 
that  her  cargo  of  wheat  destined  to  Queenstown  was  contraband,  and  justified  capture 
of  the  vessel  and  cargo,  and  under  the  particular  circumstances  of  the  captor,  the 
sinking  of  the  vessel.  Germany's  contention  that  her  liability  was  based  upon  the 
treaties  of  1799  and  1828  between  the  United  States  and  Pnissia  (Malloy,  II,  1490 
and  1499),  appears  to  have  been  accepted  by  this  government  (New  York  Times, 
May  6),  although  no  claim  on  this  ground  was  originally  advanced.  Belligerents 
have  frequently  violated  the  rule  that  a  presumption  of  innocent  use  attaches  to  con- 
ditional contraband  not  consigned  to  a  military  base  or  destination  and  that  the  bur- 
den lies  upon  the  captor  to  prove,  and  not  upon  the  cargo  owner  to  disprove,  its 
intended  hostile  military  use.  Legal  presumptions  and  the  burden  of  proof  play  an 
exceedingly  important  part  in  claims  arising  out  of  captures  on  account  of  contraband. 
The  designation  of  provisions  as  absolute  contraband  evoked  earnest  protests  from 
neutrals  during  the  Russo-Japanese  war.  Bon,  Louis,  La  guerre  Russo-Japonaise  et 
la  neutralite,  Montpelier,  1909,  p.  227. 

1  See  infra,  p.  275  and  the  recent  award  of  the  Hague  court.  May  6,  1913,  in  the  case 
of  the  Carthage  (France)  v.  Italy,  Jan.  26  and  Mar.  6,  1912,  7  A.  J.  I.  L.  623,  in  which 
Italy  was  held  liable  in  damages  for  the  capture  and  detention  of  a  neutral  vessel  and 
the  confiscation  of  an  aeroplane  on  board,  the  seizure  having  been  made  without  suf- 
ficient grounds  to  assert  the  hostile  destination  of  the  aeroplane.  Hostile  destination 
being  a  condition  of  contraband,  the  most  important  difference  between  absolute  and 
conditional  contraband  lies  in  the  presumptions  of  hostile  use  arising  out  of  its  con- 
signment. Thus,  absolute  contraband  consigned  to  enemy  territory  is  presumed  to 
be  destined  for  hostile  military  use,  and  the  doctrine  of  continuous  voyage  applies. 
Conditional  contraband,  on  the  other  hand,  is  presumed  to  have  a  non-hostile  destina- 
tion unless  consigned  to  the  military  arm  of  the  government,  directly  or  indirectly, 
and  the  captor  has  the  burden  of  overcoming  the  presumption.  Oppenheim,  II, 
§  395;  Hirschmann,  Otto,  Das  Internationale  Prisenrecht,  Miinchen,  1912,  §  38.  The 
generally  accepted  rule  now  is  that  the  doctrine  of  continuous  voyage  does  not  apply 
to  conditional  contraband.  Again,  goods  found  in  an  enemy's  ship  are  presumed  to 
be  enemy's  property.  The  neutral  must  prove  its  neutral  ownership,  the  evidence 
required  depending  upon  the  nature  of  the  case.  The  matter  of  ownership  is  often  a 
determining  issue  in  prize  cases.  In  the  case  of  the  Manouba  (France)  v.  Italy,  Jan.  26 
and  Mar.  6,  1912,  Hague  Court  of  Arbitration,  indemnitj'  was  awarded  for  the  capture 
and  detention  of  a  vessel  having  on  board  certain  suspected  enemy  soldiers,  the 
ground  of  award  being  that  no  demand  for  their  surrender  had  been  made;  see  Robert 
Ruze  in  46  R.  D.  I.  (1914),  101-136.  See  also  cases  reported  in  Moore's  Arb.  3843- 
3885. 


274  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

Since  the  Declaration  of  Paris  of  1856  a  blockade  to  be  binding 
must  be  effective,  which  means,  according  to  the  Anglo-American 
practice,  that  the  force  maintaining  the  blockade  must  be  sufficient  to 
make  it  dangerous  for  neutrals  to  enter.  Thus,  the  interference  with 
neutral  commerce  by  the  establishment  of  a  paper  blockade  of  ports  in 
the  hands  of  insurgents  has  in  numerous  cases  been  held  to  involve  the 
responsibility  of  the  state.  ^    Similarly,  erroneous  notice  of  the  blockade 

The  impartial  student  of  international  law  must  have  greeted  with  astonishment 
Great  Britain's  recent  radical  departure  from  the  accepted  principles  of  maritime 
law  in  war,  a  course  grievously  subversive  of  the  rights  of  neutrals.  It  seems  in- 
conceivable that  Great  Britain  could  have  expected  neutral  nations  to  consent  to  the 
practical  abrogation  of  the  distinction  between  absolute  and  conditional  contraband 
in  the  matter  of  hostile  and  innocent  destination,  and  of  the  presumptions  thereto 
attaching,  as  well  as  the  remarkable  enlargement  of  the  contraband  lists.  The  Order 
in  Council  of  October  29,  1914  provides  that  notwithstanding  the  provisions  of  Art.  35 
of  the  Declaration  of  London,  which  renders  conditional  contraband  hable  to  capture 
only  if  destined  "for  the  use  of  the  armed  forces  or  of  a  government  department  of 
the  enemy  state,"  conditional  contraband  "shall  be  liable  to  capture  on  board  a 
vessel  bound  for  a  neutral  port  if  the  goods  are  consigned  'to  order,'  or  if  the  ship's 
papers  do  not  show  who  is  the  consignee  of  the  goods  or  if  they  show  a  consignee 
of  the  goods  in  territory  belonging  to  or  occupied  by  the  enemy."  (According  to  press 
reports,  Germany  now  seems  to  have  proclaimed  a  somewhat  similar  rule.)  More- 
over, "the  owTier  of  the  goods"  must  "prove  that  their  destination  was  innocent." 
Not  only  has  the  immunity  of  conditional  contraband  from  the  application  of  the  doc- 
trine of  continuous  voyages  been  practically  set  aside,  but  conditional  contraband 
bound  for  any  neutral  port,  if  consigned  "to  order"  is  confiscable.  Moreover,  the 
established  i-ule  that  the  captor  has  the  burden  of  proving  the  hostile  destination  of 
conditional  contraband,  a  rule  which  Great  Britain  earnestly  supported  during  and 
after  the  Russo-Japanese  War,  has  been  completely  reversed  by  the  Order.  It  is  in- 
teresting to  compare  Sir  Edward  Grey's  contention  in  the  Oldhamia  case  against 
Russia,  Jan.  4  and  Aug.  22,  1910,  Misc.  No.  1,  1912,  Cd.  6011,  pp.  15-17.  Great 
Britain  has  left  very  little  on  the  non-contraband  list.  In  addition,  if  a  neutral  vessel 
has  proceeded  to  an  enemy  port  with  false  papers,  she  is  liable  to  capture  and  con- 
demnation "  if  she  is  encountered  before  the  end  of  her  next  voyage."  Unless  neutral 
governments  have  acquiesced  in  these  Napoleonic  restrictions  upon  neutral  com- 
merce, and  thereby  estopped  themselves  from  supporting  diplomatic  claims  of  their 
citizens  sustaining  injury  by  these  violations  of  international  law,  it  would  seem  that 
Great  Britain  is  laying  the  ground  for  a  large  number  of  just  pecuniary  claims  by 
neutral  nations  on  behalf  of  their  citizens.  The  recently  established  "submarine 
blockade"  of  Great  Britain  by  Germany,  which  has  already  resulted  in  the  sinking  of 
neutral  ships,  and  Great  Britain's  recently  instituted  quasi-blockade  of  Germany, 
incidentally  interdicting  commerce  with  neutral  European  ports,  will  undoubtedly 
give  rise  to  numerous  pecuniary  claims. 

'  Comp.  Gen.  des  Asphaltes  (Gt.  Brit.)  i^.  Venezuela,  Feb.  13,  1903,  Ralston,  331^ 


WAR   AT   SEA  275 

of  a  port  causing  an  abandonment  of  the  voyage  was  held  to  justify 
an  award.'  The  rules  relating  to  notice  must  be  strictly  followed, 
except  in  the  case  of  a  vessel  having  an  intention  to  run  a  blockade.^ 
The  penalty  for  violation  of  the  blockade  is  confiscation  of  vessel  and 
cargo,  for  knowledge  of  the  owner  of  the  cargo  is  presumed.  Numerous 
international  claims  have  been  brought  arising  out  of  the  decisions  of 
prize  courts  which  had  condemned  and  confiscated  vessels  for  violation 
of  a  blockade.^ 

Prize  courts  are  established  in  the  interests  of  neutrals  and  belliger- 
ents. The  belligerents  wish  to  be  protected  by  a  decision  of  these  mu- 
nicipal courts,  instituted  by  themselves,  against  the  claims  of  neutrals 
based  on  alleged  unjustifiable  captures.  Numerous  claims  have  been 
paid  on  account  of  unlawful  seizures  of  neutral  vessels  or  cargo,  where 
the  prize  court  held  the  seizure  to  have  been  illegal  and  without  probable 
cause. ^  As  prize  courts  are  municipal  courts  interpreting  interna- 
tional law,  their  judgments  are  not  necessarily  internationally  binding,^ 
Indenmities  have  frequently  been  awarded  by  arbitral  courts  or  have 
been  arranged  through  diplomatic  settlements  on  claims  arising  out  of 
wrongful  condemnations  by  national  prize  courts.®    By  Convention  XII 

336;  Orinoco  Asphalt  Co.  (Germany)  v.  Venezuela,  ibid.  586;  De  Caro  (Italy)  v. 
Venezuela,  ibid.  810;  Martini,  ibid.  819,  and  cases  before  the  Anglo-Chilean  Tribunal 
of  1893:  WiUiamson,  Balfour  (Gt.  Brit.)  v.  Chile,  Reel.  pres.  al  Trib.  Anglo-Chileno, 
III,  335;  St.  Mary's  Bay,  ibid.  557. 

^  Boyne,  Monmouth  and  Hilja  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb. 
3923-3928. 

2  Hale's  Rep.  127.  See  Portendic  claims,  in  which  France  was  held  liable  for  failure 
to  properly  notify  a  blockade.  30  St.  Pap.  581 ;  34  ibid.  1036;  42  ibid.  1377;  Moore's 
Arb.  4937,  and  note  in  Lapradelle's  Recueil,  p.  538. 

»  Moore's  Arb.  3885-3923. 

*  See,  e.  g.,  cases  of  the  British  schooners  E.  R.  Nickerson,  and  Wary  illegally 
seized  during  war  with  Spain,  Sen.  Doc.  396,  57th  Cong.,  1st  sess.,  32  Stat.  L.  552; 
The  Eastry  (Gt.  Brit.)  v.  Japan,  Takahashi,  op.  cit.,  739,  358;  Manouba  (France)  v. 
Italy,  svpra,  7  A.  L.  I.  J.,  629.  Certain  cases  reported  in  Moore's  Arb.,  ch.  LXVI, 
p.  3815  et  seq. 

'  As  between  private  parties,  the  decree  of  a  prize  court  is  a  judgment  in  a  pro- 
ceeding in  rem,  and  hence  is  conclusive  against  all  the  world  as  to  matters  within  its 
jurisdiction.    Gushing  v.  Laird,  107  U.  S.  69. 

^  Certain  cases  in  Moore's  Arb.,  ch.  LXVI,  p.  3815  et  seq.  and  cases  in  Russo- 
Japanese  War,  Takahashi,  op.  cit. 

See  also  treaties  between  United  States  and  Venezuela,  May  1,  1852,  Malloy,  II, 
1842;  United  States  and  Two  Sicilies,  Oct.  14,  1832,  20  St.  Pap.  277;  France  and 


270  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

of  the  Second  Hague  Conference,  as  yet  unratified,  an  international 
prize  court  to  serve  as  a  court  of  appeal  from  decisions  of  national 
prize  courts  was  provided  for.^ 

A  captured  merchant  vessel  may  not  as  a  rule  be  destroyed  instead 
of  being  conducted  to  a  port  of  a  prize  court,  since  the  transfer  of  title 
only  becomes  final  after  adjudication  by  a  prize  court.  The  few  excep- 
tions to  this  rule  are  based  upon  necessity,  each  country  having  its  own 
regulations.  A  frequent  justification  for  destruction  is  the  unseaworthy 
condition  of  the  prize  which  prevents  sending  her  in  for  adjudication, 
or  the  inability  of  the  captor  to  spare  a  prize  crew.^  If  the  capture  is 
subsequently  held  by  a  prize  court  to  have  been  lawful,  the  neutral 
owner  of  goods  on  the  destroyed  vessel  appears  to  have  no  claim  to 
indemnity.^ 

The  seizure  by  a  belligerent  of  any  enemy  or  neutral  vessel  or  cargo 
within  the  territorial  waters  of  a  neutral  Power  has  given  rise  to  numer- 
ous cases  before  prize  courts.  It  is  clear  that  such  violation  of  neutral 
territory  renders  the  belligerent  liable  to  the  neutral,  and  the  latter 
may  rightfully  demand  the  restitution  of  the  captured  vessel.^    Lord 

Brazil,  Aug.  21,  1828,  15  St.  Pap.  1242;  United  States  and  Portugal,  Jan.  19,  1832,  19 
St.  Pap.  1379;  Great  Britain  and  Brazil,  May  5,  1829,  18  St.  Pap.  689;  France  and 
United  States,  July  4,  1831,  Moore's  Arb.  4447-4485. 

1  Oppenheim,  §  192;  Scott,  J.  B.,  The  Hague  Peace  Conferences,  ch.  X,  pp.  465- 
511. 

-  See  Oppenheim,  §  194,  in  which  numerous  grounds  are  stated  which  have  justi- 
fied destruction.  Under  the  Oxford  rules  of  the  Institute  of  International  Law  ( 1913) , 
destruction  is  only  permitted  if  the  safety  of  the  captor  ship  or  the  success  of  actual 
present  mihtary  operations  requires  it  (Art.  104).  In  Arts.  107,  113  and  114  indem- 
nities are  provided  for  in  case  the  capture,  seizure  or  destruction  is  held  unwar- 
ranted. See  article  by  C.  H.  Huberich,  The  destruction  of  neutral  prizes  and  the 
German  prize  code,  10  lUinois  L.  Rev.  (1915),  5-10. 

'■>  Opi^enhcim,  §  194,  and  the  Glitra,  Hamburg  prize  court,  Jan.  29,  1915  (note  in 
10  111.  L.  Rev.  [1915],  10).  But  see  probable  effect  of  Art.  3  of  Convention  XII,  Scott, 
485.  The  leading  authorities  on  German  prize  law  are  of  the  opinion  that  compensa- 
tion is  due  to  the  neutral  owner  of  goods  on  the  destroyed  vessel.  Citations  by  C.  H. 
Huberich  in  10  Illinois  L.  Rev.  (1915),  10. 

''  Art.  3  of  Convention  XIII  of  the  Second  Hague  Conference  makes  it  obhgatory 
upon  such  neutral  Power  to  "employ  the  means  at  its  disposal  to  release  the  prize 
with  its  officers  and  crew."  Oppenheim,  II,  §  360;  Scott,  I,  620  et  seq.  See  The 
Florida,  101  U.  S.  37,  a  Confederate  cruiser  seized  by  United  States  in  territorial  wa"- 
ters  of  Brazil.    On  the  reparation  made  to  Brazil,  see  Moore's  Dig.  VII,  1090.    See 


I 


NEUTRAL   OBLIGATIONS  277 

Stowell  and  Justice  Story  in  several  prize  cases  decided  in  the  early  part 
of  the  nineteenth  centurj',  held  that  the  claim  for  restitution  could  be 
made  by  the  neutral  government  only,^  and  not  by  the  captured  vessel, 
for  as  between  the  belligerents  the  capture  was  rightful.^  However, 
the  British- American  Mixed  Commission  of  1871,  in  passing  upon  the 
claim  of  the  Sir  William  Peel,  which  was  decided  adversely  to  the 
vessel  by  the  United  States  Supreme  Court,  held  that  a  neutral  vessel 
could  institute  a  claim  for  capture  in  neutral  waters,  regardless  of  any 
protest  by  the  territorial  neutral.^  Affirmative  duties  are  now  incum- 
bent upon  a  neutral  to  prevent  any  violation  of  his  neutrality  by  a 
belligerent  seizure  in  his  territorial  waters,  for  a  breach  of  which  his 
own  responsibility  may  properly  be  invoked.^  In  land  warfare,  injuries 
inflicted  by  belligerents  in  permitting  bullets  to  fall  into  neutral  terri- 
tory, constitute  a  violation  of  the  territorial  sovereignty  of  the  neutral 
and  justify  international  reclamation  against  the  wrongdoing  belliger- 
ents. Violation  of  a  nation's  neutrality  by  a  belligerent  entails  inter- 
national responsibility. 

§  107.  Neutral  Obligations. 

The  state  of  war  casts  upon  neutrals  numerous  duties  incident  to  the 
maintenance  of  neutrality,  for  a  violation  of  which  duties  liability  is  in- 
curred either  toward  the  belligerent  or  toward  neutrals  who  sustain 
injury  thereby.^     A  neutral  must  prevent  a  belhgerent  from  setting 

also  The  Chesapeake,  Moore's  Dig.  VII,  937,  and  cases  mentioned  in  same  volume, 
§  1334. 

1  The  Diligentia,  1  Dodson,  412;  Eliza  Anne,  1  Dodson,  244  (dictum);  The  Anna, 
5  Rob.  373;  The  Sir  William  Peel,  5  Wall.  517;  The  Anne,  3  Wheat.  447.  See  also 
Dana's  Wheaton,  §  430  and  note;  the  Twee  Gebroeders,  3  Rob.  162,  and  Oppenheim, 
II,  §  362. 

2  The  Anne,  3  Wheat.  447;  The  Sir  William  Peel,  5  WaU.  517. 

5  The  Sir  William  Peel  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3948; 
Lawrence's  Wheaton,  2nd  ed.,  716. 

*  Oppenheim,  II,  §§  360-363.    See  Commodore  Stewart's  case,  1  Ct.  CI.  113. 

^  It  will  not  be  possible  to  refer  to  these  duties  in  any  detail.  These  obhgations  of 
neutrals  are  now  largely  codified  in  Convention  V  of  the  Second  Hague  Conference 
respecting  the  rights  and  duties  of  neutral  powers  and  persons  in  war  on  land  and  in 
Convention  XIII  concerning  the  rights  and  duties  of  neutral  powers  in  maritime  war. 
See  Scott,  Hague  Peace  Conferences,  I,  541  et  seq.,  620  et  seq.;  Oppenheim,  II,  §  313 
tt  seq.;  Westlake,  II,  117-119,  284-287,  321-331;  Moore's  Dig.  VI,  §  1050;  Dupuia, 


278  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

up  prize  courts  on  his  neutral  territory.  This  practice  was  not  con- 
sidered illegitimate  in  the  eighteenth  century,  but  after  the  United 
States  in  1793  had  refused  permission  to  France  to  set  up  prize  courts  in 
United  States  territory,  it  became  the  recognized  rule  that  such  a 
use  of  neutral  territory  by  belligerents  is  a  violation  of  neutrality  and 
entails  responsibility  on  the  part  of  the  neutral.^  This  rule  is  con- 
firmed by  Article  4  of  Convention  XIII  of  the  Second  Hague  Confer- 
ence.^ 

So  far  as  lies  in  his  power,  a  neutral  must  prevent  a  belligerent  man- 
of-war  from  cruising  within  his  territorial  waters  for  the  purpose  of 
capturing  enemy  vessels  leaving  his  ports.  It  has  already  been  ob- 
served that  a  neutral  must  use  diligence  to  prevent  hostilities  being 
carried  on  in  his  territorial  waters,  and  that  an  enemy  attacked  may 
invoke  this  neutral  protection,  for  a  failure  to  extend  which  the  neutral 
is  liable.^ 

One  of  the  most  important  duties  which  the  obligation  of  impartiality 
makes  incumbent  upon  neutrals  is  the  use  of  "due  diligence" — in 
Articles  8  and  25  of  Convention  XIII,  it  reads  "the  means  at  [theirj 
disposal" — to  prevent  their  subjects  from  building  and  fitting  out 
vessels  within  their  jurisdiction  or  the  departure  of  vessels  intended 

Le  droit  de  la  guerre  maritime,  Paris,  1912,  ch.  12.  On  Convention  V,  see  A.  S.  de 
Bustamente  in  2  A.  J.  I.  L.  (1908),  95-120;  Einicke,  P.,  Rechte  and  Pflichten  der 
neutralen  Machte  im  Seekrieg,  Tubingen,  1912. 

^  Wheaton,  as  representative  of  the  United  States,  obtained  heavy  mdemnities 
from  Denmark  for  such  breaches  of  neutrality  during  the  Napoleonic  Wars.  Treaty 
of  March  28,  1830,  Moore's  Arb.  4549-4573.  Spain  was  similarly  held  liable  under 
the  Florida  treaty  of  Feb.  22,  1819,  Moore's  Arb.  4487,  4513.  The  United  States  as- 
sumed heavy  liabilities  under  Art.  7  of  the  Jay  treaty  of  Nov.  19,  1794,  for  such  use 
of  its  territory  by  France.    Moore's  Arb.  3967  el  seq.,  3981;  Moore's  Dig.  VI,  §  1050. 

•  Oppenheim,  II,  §  327. 

^  But  where  the  claimant  vessel  began  the  hostilities  upon  her  captor,  she  forfeits 
neutral  protection.  The  Anne,  3  Wheat.  435.  The  claim  of  the  Brig  General  Ann- 
strong  (U.  S.)  V.  Portugal,  attacked  by  a  British  vessel  in  Fayal,  was  dismissed  because 
the  brig  had  failed  to  notify  the  Portuguese  authorities  of  the  necessity  of  protec- 
tion and  because  they  were  not  physically  in  a  position  to  protect.  Moore's  Arb. 
1071-11.32;  Moore's  Dig.  VI,  1000  and  authorities  there  cited.  The  decision  has  been 
severely  criticized.  Lapradelle  and  Politis,  Hecueil,  I,  650  el  seq.  If  the  recent  report 
of  the  sinking  of  the  German  cruiser  Dresden  by  a  liritish  war-vessel  in  territorial 
waters  of  Chile  i)roves  true,  it  is  jmssible  that  Germany  will  make  a  claim  upon  Chile, 
and  it  seems  certain  that  Chile  would  have  a  good  claim  against  Great  Britain. 


STATE    INDEMNITY  279 

tor  warlike  purposes,  and  to  prevent  either  belligerent  from  making 
use  of  neutral  ports  as  a  base  of  naval  operations.^ 

While  a  neutral  Power  incurs  no  responsibility  from  the  fact  that  in- 
dividuals leave  its  territory  to  enlist  in  the  service  of  a  belligerent,  it  is 
responsible  if  it  permits  enlistment  on  its  territory  by  either  of  the  bel- 
ligerents.^ It  is  also  bound  to  use  due  diligence  to  prevent  hostile 
expeditions  from  being  organized  in  its  territory  to  operate  against 
either  belligerent.^  A  neutral  Power,  however,  is  not  bound  to  prevent 
the  export  or  transit  of  arms  or  anything  which  may  be  of  use  to  an 
army  or  fleet.''  Such  trade  is  merely  subject  to  the  belligerent  rights  of 
capture  as  contraband,  the  neutral  state  incurring  no  responsibility  in 
the  matter. 

§  108.  State  Indemnity. 

It  remains  merely  to  note  that  it  is  becoming  a  growing  practice  for 
nations  to  alleviate  the  individual  losses  sustained  during  war,  for  which 
no  legal  liability  is  incurred,  by  making  voluntary  awards  of  indemnity 
as  a  matter  of  grace  and  favor,  in  order  to  distribute  the  loss  equally 
over  the  whole  nation.  This  beneficent  practice  was  begun  by  France 
in  1792  and  other  states  have  from  time  to  time  followed  this  worthy 
example.^    The  statute  making  the  appropriation  may  limit  the  classes 

1  These  obligations  had  their  origin  in  the  Three  Rules  of  Washington,  appUed 
in  the  Geneva  Arbitration,  Moore's  Arb.  4057-4178.  See  Convention  XIII,  2nd 
Hague  Conference,  Arts.  6  el  seq.;  Hershey,  ch.  XXXI. 

2  Arts.  4  and  6  of  Convention  V.  The  United  States  and  British  neutrality  laws 
which  prohibit  citizens  and  subjects  from  enlisting  within  the  jurisdiction  (or  by 
British  law,  even  without  his  Majesty's  Dominions)  exceed  the  requirements  of  in- 
ternational law. 

'  But  its  negligence  must  be  clearly  proved.    See  cases  in  Moore's  Arb.  4027-4056. 

*  Art.  7  of  Convention  V. 

*  France,  law  of  Aug.  11,  1792,  Feb.  27,  1793,  Nys,  III,  456,  458;  Law  of  Sept.  6, 
1871,  July  28,  1874  and  Aug.  16,  1876,  65  St.  Pap.  71  and  621;  For.  Rel.,  1884,  357. 
Bentwich,  pp.  42-43,  cites  various  cases  of  voluntary  indemnities  in  France,  Ger- 
many, Italy  and  Great  Britain.  Germany  in  1871  extended  the  indemnity  to  Ger- 
nians  and,  in  the  case  of  movables,  to  subjects  of  such  neutral  states  only  as  promised 
reciprocal  treatment  in  a  similar  case.  Moore's  Dig.  VI,  905,  and  especially  Kirchen- 
heim,  s.  V  Kriegsschaden,  in  Stengel-Fleischmann's  Worterbuch,  Tubingen,  1913. 
Bentwich  cites  England's  generous  conduct  after  the  South-African  War  (p.  44). 
Great  Britain  also  made  compensation  to  deported  neutrals.  26  Law  Mag.  and  Rev., 
486;  For.  Rel.,  1903,  479-480;  28  Clunet  (1901),  189.    See  also  U.  S.  Act  of  April  9, 


280  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

of  the  beneficiaries  as  the  state  deems  best,  so  that  occasionally  foreigners 
have  not  been  included  among  those  indenmified.  By  treaty,  diplomatic 
arrangement  or  arbitral  convention  the  Latin- American  states  and  cer- 
tain others  among  the  weaker  countries  have  at  times  been  compelled 
by  the  nations  of  Europe  to  assume  a  heavy  liability,  beyond  that  re- 
quired by  the  strict  rules  of  law,  for  injuries  sustained  by  aliens  during 
war.^ 

The  war  indemnities  which  are  often  exacted  from  the  conquered 
nation  by  the  victor  at  the  end  of  a  war  frequently  have  been  used  in 
part  to  compensate  subjects  who  have  sustained  injury  during  the  war.- 

The  growing  tendency  to  impose  upon  belligerents  and  neutrals  a 
strict  compHance  with  the  rules  of  war  in  the  interests  of  private  prop- 
erty, under  penalty  of  pecuniary  liability,  and  to  regard  war  as  a  national 
disaster,  the  burdens  of  which  shall  be  distributed  equally  over  the 
whole  nation,  should  not  be  permitted  to  be  interrupted  or  impaired. 

1816,  supra,  and  Abandoned  or  Captured  Property  Act;  Briggs  v.  U.  S.,  143  U.  S. 
346.  Latin-American  states  often  establish  claims  commissions  after  a  civil  war  for 
deciding  claims  arising  out  of  war  injuries.  See  also  treaty  between  United  States  and 
Switzerland,  Nov.  25,  1850,  Art.  2,  Malloy,  II,  1765,  providing  for  equality  with 
natives  with  respect  to  war  indemnities. 

1  Many  European  countries  pressed  claims  against  Chile  arising  out  of  her  war 
of  1879-1883  with  Bolivia  and  Peru.  Large  indemnities  were  paid.  Moore's  Arb. 
4916  (Germany).  Some  were  submitted  to  arbitration.  Seijas,  V,  544-551;  73  St. 
Pap.  1211;  79  ibid.  670  (Italy);  Martens,  Nouv.  rec.  gen.,  2«  ser.,  11,  638  (Belgium); 
74  St.  Pap.  128,  131,  and  79  ibid.  671  (France);  77  St.  Pap.  826  (Switzerland);  82 
St.  Pap.  1292  (Portugal);  76  St.  Pap.  98;  Martens,  Nouv.  rec.  gen.,  2^  ser.,  12,  pp. 
507-509  (Austria-Hungary).  See  also  For.  Rel.,  1883,  97  and  For.  Rel.,  1896,  42.  See 
also  claims  conventions  between  Italy  and  Uruguay,  Apr.  5,  1873,  63  St.  Pap.  1322; 
Sardinia  and  Argentine,  August  31,  1858,  49  St.  Pap.  477,  480;  Great  Britain-France 
and  Uruguay,  June  28,  1862,  63  St.  Pap.  1063;  France  and  New  Granada,  Ecuador 
and  Venezuela,  49  St.  Pap.  1301 ;  Great  Britain  and  Nicaragua  (seizm-es  of  neutral 
property  and  personal  injuries)  For.  Rel.,  1894,  App.  I,  234-363;  Moore's  Arb.  4966; 
Great  Britain  and  China,  1899  (Kowshing  case),  Pari.  Pap.  (Cd.  93)  China,  No.  1, 
1900. 

2  E.  g.,  France  v.  China,  treaty  of  Oct.  25,  1860,  Art.  V,  Hertslet's  China  Treaties, 
3rd  ed.,  London,  1908,  I,  289;  France  and  Madagascar,  French  domestic  commission, 
March  18,  1886,  77  St.  Pap.  801,  78  St.  Pap.  708;  Great  Britain  and  South  African 
Republic,  Aug.  3,  1881,  72  St.  Pap.  900;  Brazil  and  Paraguay,  Jan.  9,  1872,  La  Fon- 
taine, 167-170;  Chile  and  Peru,  Oct.  20,  1883,  Art.  12,  La  Fontaine,  592,  593. 


CHAPTER  VII 

INTERNATIONAL  RESPONSIBILITY  OF  THE   STATE— Con- 
tinued.    CONTRACTUAL  CLAIMS 

§  109.  Exceptional  Position  of  Claims  Arising  out  of  Contracts. 

Diplomatic  protection  is  often  invoked  by  citizens  of  one  country 
in  cases  arising  out  of  contracts  entered  into  with  citizens  of  another, 
or  with  a  foreign  government.  Coincident  with  the  constant  growth  of 
international  intercourse  and  the  exploitation  of  backward  countries 
by  foreign  capital,  this  class  of  cases  has  assumed  large  proportions  and 
has  given  rise  to  many  perplexing  and  delicate  diplomatic  situations. 
The  United  States  and  one  or  two  other  important  governments  have 
differentiated  these  claims  from  tortious  claims  arising  out  of  direct 
injuries  committed  by  an  authority  of  the  state  against  the  person  or 
property  of  their  citizens,  either  by  declining  to  interpose  in  behalf  of 
their  contracting  citizens  or  else  by  exercising  more  than  ordinary 
scrutiny  over  a  cause  of  action  having  its  origin  in  contract.  Funda- 
mentally, it  is  the  denial  of  justice  which  is  the  necessary  condition  for 
the  interposition  of  a  government  on  behalf  of  its  citizen  prejudiced  by 
breach  of  contract.  As  a  general  rule,  before  a  claim  originating  in  a 
contract  can  come  within  the  category  of  a  denial  of  justice  it  must 
have  been  submitted  to  the  courts  for  such  judicial  determination  as  is 
provided  by  the  local  law  or  in  the  contract.  Until  such  submission, 
the  government's  right  of  interposition  has  not  yet  accrued.  The 
qualifications  of  this  principle  will  be  considered  hereafter. 

§  110.  Three  Classes  of  Contractual  Claims.    Distinctions. 

There  are  three  important  classes  of  contract  claims:  first,  those 
arising  out  of  contracts  concluded  between  individuals  who  are  citizens 
of  different  countries;  second,  those  arising  out  of  contracts  between 
the  citizen  and  a  foreign  government;  and  third,  claims  arising  out  of 
the  unpaid  bonds  of  a  government  held  by  the  citizen  of  another.    The 

281 


282  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

failure  of  some  publicists  to  distinguish  these  classes  clearly  in  their 
discussion  of  the  subject  especially  the  failure  to  distinguish  the  second 
from  the  third  class,  has  brought  about  some  confusion.  When  they 
state,  as  many  of  them  do,  that  on  principle  there  can  be  no  interven- 
tion in  claims  arising  out  of  contract,  they  really  mean  to  confine  their 
assertion  to  the  case  of  claims  arising  out  of  unpaid  bonds  and  not  con- 
tracts in  general.  This  distinction,  as  will  be  observed  hereafter,  is 
important,  inasmuch  as  there  is  far  less  reason  for  governmental  inter- 
vention to  secure  the  payment  of  defaulted  bonds  of  a  foreign  govern- 
ment than  there  is  in  the  case  of  breaches  of  concession  and  similar 
contracts. 

Hall  fails  properly  to  note  the  distinction  between  contract  and  other 
claims.  He  recognizes  that  there  is  a  difference  in  the  practice  of  govern- 
ments in  supporting  claims  arising  out  of  a  default  of  a  foreign  state 
in  paying  the  interest  or  principal  of  loans  made  to  it,  and  the  complaints 
of  persons  sustaining  injury  in  other  ways.  He  admits  that  in  the 
former  case  governments  general!}^  decline  interposition,  whereas  in 
the  latter  it  is  a  matter  of  expediency  whether  in  the  particular  case 
their  right  of  interposition  shall  be  exercised.  After  giving  the  reasons 
why  public  loans  should  not  become  a  cause  of  international  interven- 
tion, he  states  that,  fundamentally, 

"there  is  no  difference  in  principle  between  wrongs  inflicted  by  breach 
of  a  monetary  agreement  and  other  wrongs  for  which  the  state,  as  itself 
the  wrongdoer,  is  immediately  responsible."  ^ 

While  the  statement  is  technically  correct,  it  is  apt  to  be  misleading, 
inasmuch  as  it  treats  ordinary  contract  claims  and  those  arising  out 
of  tort  as  forming  one  class,  whereas  there  is  an  essential  difference 
between  them.  This  consists  in  the  fact  that  in  the  case  of  contractual 
claims  the  active  notice  taken  by  the  state  of  the  wrong  done  its  citizen 
is  deferred  until  he  has  exhausted  his  local  judicial  remedies  and  a  de- 
nial of  justice  is  established,  whereas  in  claims  arising  out  of  tort,  if 
chargeable  to  a  government  authority,  interposition  is  generally  ini- 

'  Hall,  Gth  ed.,  27.5-27(5.  See  also  Findlay,  commissioner,  U.  S.-Venezuelan  com- 
mission of  Dec.  5,  1885,  who  considered  the  difference  one  in  degree  only.  He  be- 
lieved that  a  contractual  claim  for  building  a  public  work  and  one  founded  on  non- 
[)ayment  of  a  public  debt  are  the  same,  both  being  voluntary  engagements.  Opinions 
of  the  commission  (Washington,  1890),  335,  Moore's  Arb.  3650. 


CONTRACTS   BETWEEN   INDIVIDUALS  283 

mediate;  and  in  the  further  fact  that  wider  discretion  is  usually  ex- 
ercised by  the  protecting  state  in  the  enforcement  of  contractual  claims 
than  of  those  purely  tortious  in  origin. 

Westlake  is  one  of  the  few  writers  who  properly  distinguish  the  case 
of  ordinary  contract  claims — for  example,  those  arising  out  of  supplies 
furnished  the  government  or  out  of  concession  contracts  concluded  be- 
tween a  citizen  and  a  foreign  government — and  the  case  of  unpaid 
bonds  which  constitute  part  of  a  pubhc  loan. 

In  the  case  of  ordinary  contract  claims,  he  says, 

"there  is  a. petition  of  right,  a  court  of  claims,  or  an  appropriate  ad- 
ministrative tribunal  before  which  to  go.  The  case  is  not  essentially 
different  from  any  other  arising  between  man  and  man.  The  foreigner 
who  has  contracted  with  the  government  has  not  elected  to  place  him- 
self at  its  mercy,  and  the  rule  of  equal  treatment  with  nationals  requires 
that  he  shall  have  the  full  benefit  of  the  established  procedure,  while 
if  in  a  rare  instance  there  is  no  such  established  procedure,  or  it  proves 
to  be  a  mockery,  the  other  rule  of  protecting  subjects  against  a  flagrant 
denial  of  justice  also  comes  in.  But  public  loans  are  contracted  by 
acts  of  a  legislative  nature,  and  when  their  terms  are  afterwards  modi- 
fied to  the  disadvantage  of  the  bondholders  this  is  done  by  other  acts 
of  a  legislative  nature,  which  are  not  questionable  by  any  proceeding 
in  the  country.  If  therefore  the  rule  of  equal  treatment  with  nationals 
be  looked  to,  the  foreign  bondholder  has  no  case  unless  he  is  discrimi- 
nated against.  And  if  the  rule  of  protecting  subjects  against  a  flagrant 
denial  of  justice  be  looked  to,  the  reduction  of  interest  or  capital  is  al- 
ways put  on  the  ground  of  the  inability  of  the  country  to  pay  more — 
a  foreign  government  is  scarcely  able  to  determine  whether  or  how  far 
that  plea  is  true — supposing  it  to  be  true,  the  provisions  which  all 
legislations  contain  for  the  relief  of  insolvent  debtors  prove  that  honest 
inability  to  pay  is  regarded  as  a  title  to  consideration — and  the  holder 
of  a  bond  enforceable  only  through  the  intervention  of  his  government 
is  trying,  when  he  seeks  that  intervention,  to  exercise  a  different  right 
from  that  of  a  person  whose  complaint  is  the  gross  defect  of  a  remedial 
process  which  by  general  understanding  ought  to  exist  and  be  effective.  "^ 

CONTRACTS  BETWEEN   INDIVIDUALS 

§  111.  Absence  of  Governmental  Interest. 

The  first  class  of  cases,  contracts  between  individuals,  can  give  rise 
only  to  an  action  in  the  courts  for  breach  of  contract.    The  government 
of  the  foreigner  is  in  no  wise  concerned  unless  the  local  courts  deny  or 
1  Westlake,  I,  2nd  ed.,  332-333. 


284  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

unduly  delay  justice,  in  which  event  the  government's  right  of  inter- 
position rests  on  the  denial  of  justice  alone  and  disregards  the  fact  that 
the  claim  had  its  origin  in  a  contract.  This  rule  has  generally  been 
followed  by « the  governments  of  contracting  citizens,  and  has  been 
applied  by  international  commissions.^ 

CONTRACTS   BETWEEN   CITIZEN   AND   FOREIGN   GOVERNMENT 

§  112.  Formal  Interposition  not  Customary. 

A  more  doubtful  case  arises  where  the  contract  has  been  concluded 
between  the  citizen  and  the  foreign  government.  It  is  not  proposed 
here  to  discuss  the  question  of  unpaid  bonds,  for  this  is  a  distinct  branch 
of  the  subject,  although  some  writers  do  not  observe  it  as  such.  The 
contracts  now  in  question  are  such  as  are  made  with  the  foreign  govern- 
ment for  the  supply  of  material,  for  the  execution  of  public  works,  or 
for  the  exercise  of  concessions  of  various  kinds.  Here  again  the  general 
rule  followed  by  the  United  States,  although  not  by  all  other  govern- 
ments, is  that  a  contract  claim  cannot  give  rise  to  the  diplomatic  inter- 
position of  the  government  unless,  after  an  exhaustion  of  local  remedies, 
there  has  been  a  denial  of  justice,  or  some  flagrant  violation  of  inter- 
national law.  The  use  of  good  offices  is,  however,  usually  sanctioned. 
While  the  rule  is  fairly  clear,  its  application  and  its  exceptions  are  vague, 
due  principally  to  the  fact  that  the  intervening  government  interprets 
for  itself  what  is  a  denial  of  justice  and  frequently  concludes  that  harsh 
treatment  of  its  contracting  citizen  by  the  foreign  government  con- 
stitutes a  tortious  act  which  takes  the  case  out  of  the  ordinary  rule. 
Broadly  speaking,  we  might  state  the  rule  as  follows:  Diplomatic  inter- 
position will  not  lie  for  the  natural  or  anticipated  consequences  of  the 
contractual  relation,  but  only  for  arbitrary  incidents  or  results,  such 
as  a  denial  of  justice  or  flagrant  violation  of  local  or  international  law.^ 

'  Smith  (U.  S.)  V.  Mexico,  Act  of  Congress,  Mar.  3,  1849,  Moore's  Arb.  3456; 
llowland  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Moore's  Arb.  3458;  Hayes  (U.  S.)  v.  Mexico, 
Mar.  3,  1849,  Moore's  Arb.  3456;  Chase  (U.  S.)  v.  Mexico,  Moore's  Arb.  3469-70; 
La  Guaira  Light  &  Power  Co.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  182. 

^  F.  de  Martens,  in  his  essay  "Par  la  justice  vers  la  paix"  (pp.  30-31),  supports 
the  rule  of  non-interference  by  the  government  until  the  claimant  has  appealed  to 
the  local  courts  and  justice  has  been  denied.  Even  then  he  suggests  a  preliminary 
judicial  examination  into  the  justice  of  the  claim  by  the  government  of  the  claimant. 


FORMAL   INTERPOSITION    NOT   CUSTOMARY  285 

There  are  several  reasons  why  governments  are  and  should  be  less 
zealous  in  pressing  the  claims  of  their  citizens  arising  out  of  breach  of 
contract  than  those  arising  out  of  some  tortious  act.  The  first  reason 
is  that  the  citizen  entering  into  a  contract  does  so  voluntarily  and  takes 
into  account  the  probabilities  and  possibilities  of  performance  by  the 
foreign  government.  He  has  in  contemplation  all  the  ordinary  risks 
which  attend  the  execution  of  the  contract.  In  the  second  place,  by 
going  abroad,  he  submits  impliedly  to  the  local  law  and  the  local  judi- 
cial system.  The  contract  or  the  law  provides  remedies  for  breach  of 
contract.  These  he  must  pursue  before  his  own  government  can  be- 
come interested  in  his  case.  In  the  third  place,  practically  every  civi- 
lized state  may  be  sued  for  breach  of  contract.  Even  the  United  States, 
which  renders  itself  less  amenable  to  suit  at  the  hands  of  injured  in- 
dividuals than  perhaps  any  other  country,  recognizes  its  liability  for 
illegal  breaches  of  contract.^  In  England,  a  petition  of  right  is  rarely 
refused;  in  the  United  States,  the  Court  of  Claims,  or  a  similar  body 
in  most  of  the  states,  has  jurisdiction;  in  France  and  some  other  coun- 
tries, the  Council  of  State  or  some  administrative  body  is  the  proper 
forum  for  suits  against  the  state;  in  Latin-America,  the  Supreme  Court 
is  generally  given  jurisdiction. 

The  exceptions  to  this  requirement  of  exhausting  local  remedies 
occur  first,  where  the  local  judicial  organization  is  so  corrupt,  or  the 
possibiUty  of  local  remedy  so  remote,  that  it  would  be  folly  to  compel 
a  citizen  to  submit  his  cause  of  action  to  local  courts.  The  fact  that 
the  protecting  government  determines  for  itself  the  existence  of  these 
qualifying  conditions  renders  the  application  of  the  rule  uncertain. 
Secondly,  where  the  breach  is  one  not  within  the  contemplation  of  the 
contracting  parties,  but  partakes  of  the  nature  of  an  arbitrary  tort, 
the  protecting  government  will  relieve  its  citizen  from  the  ordinary  rule 
of  submission  to  local  courts.  The  position  of  the  injured  individual 
and  the  protecting  government  is  the  same  as  in  cases  of  ordinary  tor- 
tious acts  of  the  defendant  government  and  justifies  interposition. 

See  also  Martens'  Traite  de  droit  international,  vol.  I,  446-447.  See  also  Fiore,  P., 
Nouveau  droit  int.  public  (Paris,  18S5,  Antoine's  trans.),  §651;  Lomonaco,  Diritto 
internazionale  pubblico  (Napoli,  1905),  218-219. 

» Revised  Statutes,  §  1059,  par.  1;  §  1060;  §  1068;  Act  of  March  3,  1887  (Tucker 
Act),  24  Stat.  L.,  .505,  §  1. 


286  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

The  early  publicists  seem  to  have  justified  reprisals  by  a  govern- 
ment for  default  of  obligations  due  its  citizens  on  the  part  of  another 
government.  Grotius  appears  to  have  sanctioned  reprisals  for  the  col- 
lection of  debts  due  to  subjects  from  a  foreign  power,  notwithstanding 
the  fact  that  the  claim  to  be  thus  satisfied  had  been  submitted  to  the 
courts  of  the  government  in  default  and  by  them  pronounced  unfounded.^ 
Vattel  similarly  justified  hostile  action  to  enforce  contracts  concluded 
between  a  citizen  and  a  foreign  government.  But  Vattel  admits  that 
before  the  claimant  nation  proceeds  to  such  extremities  (reprisals)  it 
must  be  able  to  show  that  it 

"has  ineffectually  demanded  justice,  or  at  least  that  [the  claimant] 
has  every  reason  to  think  it  would  be  vain  ...  to  demand  it."  ^ 

From  that  time  on,  the  conviction  has  gained  ground  that  an  attempt 
to  exhaust  local  justice  must  be  shown  before  diplomatic  pressure  or 
hostile  action  is  warranted.  Modern  writers  generally  agree  that  where 
the  citizen  has  at  his  disposal  the  legal  means  of  asserting  his  rights 
and  obtaining  reparation  of  his  injury  by  judicial  proceedings,  the  in- 
terposition of  his  government  is  unjustified,  for 

"to  secure  by  diplomacy  what  the  individual  might  secure  judicially 
is  to  be  deemed  highly  reprehensible."  * 

As  will  be  noted,  contractual  claims  are  among  the  first  causes  of  com- 
plaint now  largely  removed  from  the  field  of  armed  conflict,  through 
the  adoption  by  the  Second  Hague  Conference  and  the  general  ratifica- 
tion of  the  convention  for  the  limitation — better,  postponement — of  the 
use  of  force  to  recover  contract  debts. 

Coming  now  to  the  practice  of  governments,  it  cannot  be  said  that 
the  countries  of  continental  Europe  make  any  substantial  distinction 
between  claims  arising  out  of  contract  and  those  arising  out  of  other 
acts.*    The  United  States,  however,  and  at  times  Great  Britain,  have 

'  Grotius,  De  jure  belli  ac  pads,  3,  2,  5;  cf.  1,  5,  2  and  2,  25,  1. 

2  Vattel,  Law  of  nations  (Chitty-Ingraham  edition,  Phila.,  1855),  Bk.  II,  ch.  18, 
§§  343,  347,  .354;  ch.  14,  §§  214-216.  See  also  Wheaton  (Lawrence's  edition,  1863), 
610. 

'  Fiore,  P.,  Nouveau  droit  international  public  (Antoine's  trans.),  I,  §  651.  Mar- 
tens, Trait6  de  droit  international,  446. 

*  Germany,  Italy  and  France  have  at  timea  intervened  diplomatically  in  favor  of 


FORMAL   INTERPOSITION   NOT   CUSTOMARY  287 

limited  their  protection  considerably  in  the  case  of  ordinary  contract 
claims.  The  fact  that  the  citizen  entered  voluntarily  into  the  contract 
seems  to  have  been  a  determining  factor  in  the  policy  of  the  United 
States  not  to  interpose  diplomatically  in  behalf  of  its  citizens  preju- 
diced through  breach  of  a  contract  concluded  by  them  with  a  foreign 
government.  John  Quincy  Adams'  declaration  as  Secretary  of  State  has 
been  quoted  frequently  by  his  successors  in  the  Department  of  State. 
Adams'  ruling  was  as  follows: 

"With  regard  to  the  contracts  of  an  individual  born  in  one  country 
with  the  government  of  another,  most  especially  when  the  individual 
contracting  is  domiciliated  in  the  country  with  whose  government  he 
contracts,  and  formed  the  contract  voluntarily,  for  his  own  private 
emolument  and  without  the  privity  of  the  nation  under  whose  protection 
he  has  been  born,  he  has  no  claim  whatsoever  to  call  upon  the  govern- 
ment of  his  nativity  to  espouse  his  claim,  this  government  having  no 
right  to  compel  that  with  which  he  voluntarily  contracted  to  the  per- 
formance of  that  contract." » 

Mr.  Alarcy  in  1856  made  the  following  apt  statement  of  the  rule  of 
the  Department  of  State : 

"The  government  of  the  United  States  is  not  bound  to  interfere  to 
secure  the  fulfillment  of  contracts  made  between  their  citizens  and 
foreign  governments,  it  being  presumed  that  before  entering  into  such 
contracts  the  disposition  and  ability  of  the  foreign  power  to  perform  its 
obligations  was  examined,  and  the  risk  of  failure  taken  into  considera- 
tion." 2 

their  subjects  in  cases  arising  out  of  contract,  without  any  question  as  to  the  propriety 
of  such  action.  Germany's  and  Italy's  attitude  was  shown  in  the  action  against 
Venezuela  in  1902,  although  claims,  other  than  contractual,  were  included  in  the 
causes  of  complaint.  See  Dulon  in  38  Amer.  Law  Rev.  650,  and  Brook  in  30  Law  IMag. 
«t  Rev.  165.  See  also  case  of  Kronsberg,  a  German  engineer,  against  Roimiania  in 
1871,  Tchernoff,  Protection  des  nationaux  a  I'etranger,  188;  Martens'  Traite,  I,  70. 
See  the  French  action  against  the  Dominican  Repubhc,  1894,  For.  Rel.,  1895,  I, 
235-243,  397-402. 

1  John  Quincy  Adams,  Secretary  of  State,  to  Mr.  Salmon,  April  29,  1823,  Am.  St. 
Pap.,  For.  Rel,  Vol.  5,  403,  quoted  in  Wharton,  II,  654,  Moore's  Dig.  VI,  708,  and 
notes  there  cited.  See  also  the  Landreau  case,  Sec'y  of  State  Bayard  to  Mr.  Cowie, 
June  15,  1885,  Moore's  Dig.  VI,  715;  and  the  Fiedler  case,  Mr.  Bayard,  Sec'y  of 
State,  to  Mr.  Jarvis,  Mar.  22,  1886,  Moore's  Dig.  VI,  715. 

"  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Fowler,  July  17,  1856,  Wharton,  II,  655.  To  the 
effect  that  the  government  is  not  a  collecting  agency  for  claims  for  services  rendered 
to  foreign  governments,  see  Seely's  case  (services  as  legal  counsel),  6  Op.  Atty.  Gen. 


288  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD  ■ 

§  113.  Use  of  Good  Offices  Authorized. 

While  diplomatic  interposition  or  pressure  is  declined,  the  use  of 
friendly  good  offices  by  the  diplomatic  representatives  of  the  United 
States  abroad  is  authorized.  Secretary  Fish  expressed  as  follows  the 
practice  of  the  Department  in  this  respect : 

"Our  long-settled  policy  and  practice  has  been  to  decline  the  formal 
intervention  of  the  government  except  in  cases  of  wrong  and  injury  to 
persons  and  property,  such  as  the  common  law  denominated  torts  and 
regards  as  inflicted  by  force,  and  not  the  results  of  voluntary  engage- 
ments or  contracts. 

"In  cases  founded  upon  contract  the  practice  of  this  government  is 
to  confine  itself  to  allowing  its  minister  to  exert  his  friendly  good  offices 
in  recommending  the  claim  to  the  equitable  consideration  of  the  debtor 
without  committing  his  own  government  to  any  ulterior  proceedings."  i 

What  is  meant  by  "good  offices"  and  the  extent  to  which  they  may 
be  exerted  has  on  several  occasions  been  construed  by  secretaries  of 
State.  Mr.  Fish  defined  the  use  of  "good  offices"  as  a  direction  to  a 
diplomatic  agent 

"to  investigate  the  subject,  and  if  [he]  shall  find  the  facts  as  represented 
[he]  will  seek  an  interview  with  the  minister  for  foreign  affairs  and  re- 
quest such  explanations  as  it  may  be  in  his  power  to  afford."  - 

Good  offices  are  in  the  nature  of  unofficial  personal  recommendations 
and  are  not  tendered  officially,  although  apparently  the  government 
may  authorize  or  direct  a  diplomatic  representative  to  extend  them. 
Perhaps  the  best  statement  of  the  practice  of  the  United  States  in  the 
matter  of  contract  claims  was  made  by  Secretary  Bayard  in  1885 : 

"It  is  not  necessary  to  remind  you  that  an  appeal  by  one  sovereign 
on  behalf  of  a  subject  to  obtain  from  another  sovereign  the  payment 

386  (March  17,  1854).  See  also  dictum  in  108  U.  S.  90.  Contrary  to  an  almost 
absolute  rule,  the  Department  of  State  allowed  the  claim  of  General  Frederick  Ward 
for  mihtary  services  rendered  to  China,  out  of  the  Boxer  Indemnity,  although  various 
administrations  had  decHned  to  press  the  claim  (For.  Rel.,  1888,  I,  199). 

1  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Muller,  May  16,  1871,  Wharton,  II,  656,  Moore's 
Dig.  VI,  710.  See  the  long  list  of  cases  cited  by  Wharton,  II,  655,  and  by  Moore, 
VI,  70.5-707,  in  support  of  the  rule  that  "it  is  not  usual  for  the  Government  of  the 
United  States  to  interfere,  except  by  its  good  offices,  for  the  prosecution  of  claims 
founded  on  contracts  with  foreign  governments." 

»  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Oaborn,  Mar.  4,  1876,  Wharton,  II,  658;  Moore'3 
Dig.  VI,  711. 


USE    OF    GOOD    OFFICES   AUTHORIZED  28& 

of  a  debt  alleged  to  be  due  such  subject  is  the  exercise  of  a  very  delicate 
and  peculiar  prerogative,  which,  by  principles  definitely  settled  in  this 
Department,  is  placed  under  the  following  limitations: 

"1.  All  that  our  government  undertakes,  when  the  claim  is  merely 
contractual,  is  to  interpose  its  good  offices;  in  other  words,  to  ask  the 
attention  of  the  foreign  sovereign  to  the  claim ;  and  this  is  only  done  when 
the  claim  is  one  susceptible  of  strong  and  clear  proof. 

"2.  If  the  sovereign  appealed  to  denies  the  validity  of  the  claim  or 
refuses  its  payment,  the  matter  drops,  since  it  is  not  consistent  with 
the  dignity  of  the  United  States  to  press,  after  such  a  refusal  or  denial, 
a  contractual  claim  for  the  repudiation  of  which  there  is  by  the  law  of 
nations  no  redress.  .  .  . 

"3.  When  the  alleged  debtor  sovereign  declares  that  his  courts  are 
open  to  the  pursuit  of  the  claim,  this  by  itself  is  a  ground  for  a  refusal 
to  interpose.  Since  the  establishment  of  the  Court  of  Claims,  for  in- 
stance, the  government  of  the  United  States  remands  all  claims  held 
abroad,  as  well  as  at  home,  to  the  action  of  that  court,  and  declines  to 
accept  for  its  executive  department  cognizance  of  matters  which  by  its 
own  system  it  assigns  to  the  judiciary. 

"4.  When  this  Department  has  been  appealed  to  for  diplomatic 
intervention  of  this  class,  and  this  intervention  is  refused,  this  refusal 
is  regarded  as  final  unless  after-discovered  evidence  be  presented  which, 
under  the  ordinary  rules  applied  by  the  courts  in  motions  for  a  new 
trial,  ought  to  change  the  result  or  unless  fraud  be  shown  in  the  con- 
coction of  the  decision."  i 

Even  good  offices  will,  however,  be  refused 

"when  the  debt  was  of  a  speculative  character,  or  when  it  was  incurred 
to  aid  the  debtor  government  to  make  war  on  a  country  with  which  the 
United  States  was  at  peace."  ^ 

From  this  it  may  be  inferred  that  the  Department  of  State  takes 
some  official  interest  in  the  extension  of  good  offices. 

The  United  States  will  not  promise  protection  in  advance  to  secure 
the  execution  of  a  contract  between  a  citizen  and  a  foreign  government. 
The  American-China  Development  Company  in  entering  upon  con- 
tracts with  China  requested  such  advance  protection  and  alleged  that 
the  English  investors  in  their  enterprise  would  receive  such  guaranty 
from  the  British  Foreign  Office.  Secretary  of  State  Day  gave  as  the 
reason  for  his  unwillingness  to  extend  such  a  guaranty  as  the  British 

1  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Bispham,  June  24,  1885,  Wharton,  II,  Gob; 
Moore's  Dig.  VI,  716. 

2  Mr.  Seward,  Sec'y  of  State,  to  Messrs.  Leavitt  &  Co.,  May  6,  1868,  Wharton,  II, 
656;  Moore's  Dig.  VI,  710. 


290  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

government  was  said  to  have  extended,  that  the  British  Crown,  ex- 
orcising the  executive  power  in  Great  Britain,  possesses  both  the  war- 
making  and  the  treaty-making  power,  and  is  therefore  authorized,  in 
international  relations,  to  give  guarantees  and  enter  into  engagements 
which  the  Executive  of  the  United  States  would  not  alone  be  competent 
to  assume.^ 

Secretary  Marcy  in  1855  gave  a  somewhat  similar  explanation  for 
the  unwillingness  of  the  United  States  to  interfere  officially  in  a  case 
of  alleged  breach  by  a  foreign  government  of  a  contract  with  citizens 
of  the  United  States.-  The  possibility  of  Congress  declining  to  sup- 
port the  action  of  the  Executive  does  not,  however,  appear  to  have  been 
as  prominently  in  the  minds  of  other  secretaries  of  State  in  dealing 
with  international  claims.  While  the  Department  of  State  will  rarely 
protest  in  advance  against  a  proposed  law  of  a  foreign  country  inter- 
fering merely  with  contractual  rights  of  American  citizens,  there  have 
been  occasions  where  such  action  was  taken.^ 

The  general  belief  that  Great  Britain  does  not  in  practice  interfere 
in  claims  arising  out  of  contract,  is  erroneously  based  upon  the  fre- 
quently quoted  circular  of  Lord  Palmerston,  Secretary  of  State  for 
Foreign  Affairs,  directed  in  1848  to  the  British  representatives  in  foreign 
states.^  Palmerston  declared  that  while  the  government  had  the  right 
to  intervene,  it  was  merely  a  question  of  discretion  with  the  British 
government  whether  the  pecuniary  claims  of  subjects  should  be  taken 
up  or  not  by  diplomatic  negotiation,  and  "the  decision  of  that  question 
of  discretion  turns  entirely  upon  British  and  domestic  considerations."  ' 
This  language  is  broad  enough,  indeed,  to  cover  any  class  of  claim,  but 

1  Sec'y  of  State  Day  to  Messrs.  Gary  &  Whitridge,  Aug.  24,  1898,  in  the  case  of  the 
American-China  Development  Co.,  Moore's  Dig.  VI,  288. 

2  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Clay,  Minister  to  Peru,  May  24,  1855,  Moore's 
Dig.  VI,  709. 

5  Mr.  Webster,  Sec'y  of  State,  to  Mr.  Letcher,  Aug.  24,  1850,  protesting  against 
any  violation,  by  decree,  of  the  Tehuantepec  concession,  adding  that  this  would  be 
regarded  as  a  national  grievance.    Sen.  Doc.  97,  32nd  Cong.,  1st  sess. 

*  The  instruction  in  full  is  printed  in  Phillimore,  3rd  ed.,  London,  1882,  II,  9-11. 

'  In  fact,  Great  Britain  has  often  interposed  to  redress  breaches  of  private  con- 
tract. See,  for  example,  the  intervention  in  Bolivia  in  1853,  Lord  Clarendon  to 
Mr.  Lloyd,  56  St.  Pap.  1003,  and  the  criticism  of  Great  Britain's  action  by  Baty, 
Int.  law,  127.  Great  Britain  freely  extends  good  offices.  See,  for  example,  case  of 
Dixon  V.  Portugal,  75  St.  Pap.  1196. 


QUALIFICATIONS    OF    GENERAL    RULE    OF   NON-INTERPOSITION        201 

it  must  be  understood  that  Palmerston's  ruling  was  made  with  refer- 
ence to  claims  arising  out  of  unpaid  bonds  of  foreign  states  held  by 
British  subjects,  a  case  in  which  formal  interposition  is  for  various 
reasons,  as  will  be  shown,  even  less  justifiable  than  in  the  case  of  or- 
dinary contracts. 

§  114.  Qualifications  of  General  Rule  of  Non-Interposition. 

In  applying  the  rule  of  refusing  diplomatic  interposition  in  contract 
claims,  the  United  States  has  always  been  careful  to  limit  its  strict 
interpretation  to  cases  entirely  free  from  the  qualifying  factors  of  a 
denial  of  justice  or  other  tortious  element.  If  in  any  respect  a  denial 
of  justice  could  be  discerned  in  the  case,  or  if  any  arbitrary  act  or  con- 
fiscatory breach  of  the  contract  had  taken  place,  the  rule  has  been 
considered  as  no  longer  applying,  A  brief  enumeration  of  these  ex- 
ceptions to  the  rule  may  be  of  interest. 

1.  The  United  States  has  on  several  occasions  insisted  that  its  citi- 
zens entering  into  foreign  contracts  shall  have  free  and  fair  access  to 
the  courts  and  that  the  courts  shall  be  so  organized  that  the  dispensing 
of  justice  may  be  presumed.  Secretary  of  State  Evarts  once  said  that 
when  a  government  does  not  hold  itself  amenable  to  judicial  suit  by 
foreign  claimants  on  contracts  made  with  it,  their  claims  may  be  held 
to  form  an  exception  to  the  general  rule  as  to  contracts,^  and  in  a  sub- 
sequent case  in  Haiti,  the  Lazare  case,  Mr.  Evarts  added : 

"the  Government  of  the  United  States  will  insist  on  fair  and  impartial 
examination  and  adjudication  by  Haiti,  without  discrimination  as  to 
nationality,  of  a  contractual  claim  of  a  citizen  of  the  United  States 
against  Haiti. ^ 

Mr.  Bayard  in  stating  the  general  rule  of  refusal  to  press  contract 
claims  excepted  the  case  of  discrimination  against  a  citizen  by  the 
debtor  government  and  a  denial  of  a  judicial  remedy  against  it.^     In 

^  Mr.  Evarts  to  Mr.  Gibbs,  Oct.  31,  1877,  Wharton,  II,  662.  This  statement  occurs 
in  Mr.  Evarts'  opinion  in  the  case  of  Sparrow  v.  Peru,  Moore's  Dig.  VI,  720.  See  also 
For.  Rel.,  1895-6,  II,  1036-1055. 

^  Mr.  Evarts  to  Mr.  Langston,  Minister  to  Haiti,  Dec.  13,  1877,  Moore's  Dig.  VI, 
724.    For  a  history  of  the  Lazare  case,  see  Moore's  Arb.  1749  et  seq. 

3  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  HaU,  Minister  to  Central  America,  Mar.  27, 
1888,  For  Rel,  1888,  I,  136.    See  also  Moore'e  Dig.  VI,  727. 


292  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

the  celebrated  Idler  case  the  fact  that  Venezuela  had  illegally  invoked 
the  remedy  of  restitutio  in  integrum  and  by  executive  action  had  ar- 
bitrarily changed  the  personnel  of  the  court  and  district  attorney  for 
that  particular  case  was  held  by  the  mixed  commission  under  the  con- 
vention of  Dec.  5,  1885,  to  have  been  a  denial  of  justice  and  to  warrant 
an  award. ^ 

2.  Cases  have  frequently  occurred  in  which  the  contracts  of  citizens 
of  the  United  States  with  foreign  governments  were  arbitrarily  annulled 
by  the  contracting  government  without  recourse  to  a  judicial  deter- 
mination of  the  contract  or  of  the  legitimacy  of  its  act.  An  act  of  this 
kind  has  generally  been  held  by  the  Department  of  State  to  be  a  con- 
fiscatory breach  of  the  contract  and  to  warrant  diplomatic  interposition 
as  in  cases  of  tort.  Any  weakening  of  the  judicial  remedy  of  the  citizen 
has  been  held  equally  to  relieve  the  government  from  the  ordinary 
rule  of  non-interposition  in  contract  cases.  The  rule  in  such  cases 
has  perhaps  been  best  stated  by  Lewis  Cass,  when  Secretary  of  State, 
as  follows: 

"It  is  quite  true,  for  example,  that  under  ordinar}'-  circumstances 
when  citizens  of  the  United  States  go  to  a  foreign  country  they  go  with 
an  implied  understanding  that  they  are  to  obey  its  laws,  and  submit 
themselves,  in  good  faith,  to  its  established  tribunals.  When  they  do 
business  with  its  citizens,  or  make  private  contracts  there,  it  is  not  to 
be  expected  that  either  their  own  or  the  foreign  government  is  to  be  made 
a  party  to  this  business  or  these  contracts,  or  will  undertake  to  deter- 
mine any  disputes  to  which  they  may  give  rise.  The  case,  however,  is 
very  much  changed  when  no  impartial  tribunals  can  be  said  to  exist  in  a 
foreign  country,  or  when  they  have  been  arbitrarily  controlled  by  the 
government  to  the  injury  of  our  citizens.  So,  also,  the  case  is  widely 
different  when  the  foreign  government  becomes  itself  a  party  to  impor- 
tant contracts,  and  then  not  only  fails  to  fulfill  them,  but  capriciously 
annuls  them,  to  the  great  loss  of  those  who  have  invested  their  time  and 
labor  and  capital  from  a  reliance  upon  its  own  good  faith  and  justice."  ^ 

In  a  previous  communication  to  Mr.  Lamar,  Minister  to  Central 
America,  Mr.  Cass  stated: 

"What  the  United  States  demand  is  that  in  all  cases  where  their  cit- 
izens have  entered  into  contracts  with  the  proper  Nicaraguan  authori- 
ties, and  questions  have  arisen  or  shall  arise  respecting  the  fidelity  of 

'  Idler  (U.  S.)  v.  Venezuela,  Dec.  5,  1S85,  Moore's  Arb.  3517. 

«  Mr.  Caea,  Sec'y  of  State,  to  Mr.  Dimitry,  May  3,  1860,  Moore's  Dig.  VI,  287. 


If  i 


QUALIFICATIONS    OF   GENERAL    RULE    OF    NON-INTERPOSITION       293 

their  execution,  no  declaration  of  forfeiture,  eitiier  past  or  to  come,  shall 
possess  any  binding  force  unless  pronounced  in  conformity  with  the  pro- 
visions of  the  contract,  if  there  are  any;  or  if  there  is  no  provision  for 
that  purpose,  then  unless  there  has  been  a  fair  and  impartial  investiga- 
tion in  such  a  manner  as  to  satisfy  the  United  States  that  the  proceeding 
has  been  just  and  that  the  decision  ought  to  be  submitted  to."  ' 

The  forcible  deprivation  of  the  property  and  franchises  of  a  citizen 
of  the  United  States  without  due  process  of  law  and  a  fair  trial  is  con- 
sidered as  a  tort  and  the  claim  will  be  pressed  on  that  ground  regard- 
less of  its  contractual  origin. - 

Madison,  at  an  early  date  in  our  history,  distinguished  between 
"compulsory  measures"  practiced  upon  United  States  citizens  and 
''voluntary  contracts,"  the  possible  results  of  which  may  be  presumed 
to  have  been  in  the  contemplation  of  the  parties.^ 

Perhaps  the  most  zealous  interposition  on  the  part  of  the  United 
States  has  been  in  cases  where  the  confiscatory  act  of  the  foreign  govern- 
ment consisted  in  the  arbitrary  annulment  of  the  entire  contract  or 
of  some  of  its  essential  provisions  without  a  resort  to  the  courts.* 

^  Mr.  Cass,  Sec'y  of  State,  to  Mr.  Lamar,  Minister  to  Central  America,  July  25, 
1858,  Wharton,  II,  661;  Moore's  Dig.  VI,  723-724.  See  also  Mr.  Cass  to  Mr.  Jerez, 
May  5,  1859,  Moore's  Dig.  VI,  724;  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Scott,  Min- 
ister to  Venezuela,  June  23,  1887,  Moore's  Dig.  VI,  725. 

2  The  interposition  of  the  Department  of  State  in  the  case  of  the  New  York  and 
Bermudez  Co.  v.  Venezuela  was  based  on  the  ground  that  the  company  was  deprived 
of  its  rights  by  an  abuse  of  judicial  process.  Sen.  Doc.  413,  60th  Cong.,  1st  sess.,  123- 
159.  The  U.  S.  and  Venezuela  Co.  claim  v.  Venezuela,  ibid.  95-118,  which  the  De- 
partment was  willing  to  submit  to  arbitration,  was  diplomatically  settled  by  agree- 
ment of  Aug.  21,  1909,  For.  Rel.,  1909,  p.  624. 

s  Mr.  Madison,  Sec'y  of  State,  to  Mr.  Livingston,  Oct.  27,  1803,  Moore's  Dig.  VI, 
707. 

^  Delagoa  Bay  Railroad  case,  McMurdo  (U.  S.)  v.  Portugal,  For.  Rel.,  1900,  903; 
1902,  848-852.  See  also  Moore's  Dig.  VI,  727-728;  Moore's  Arb.  1865-1899.  See 
the  claim  of  Emery  (U.  S.)  v.  Nicaragua,  settled  by  agreement  of  Sept.  18,  1909, 
For.  Rel.,  1909,  463. 

For  the  El  Triunfo  case,  Salvador  Commercial  Co.  (U.  S.)  v.  Salvador,  see  For. 
Rel.,  1902,  8.38-880,  and  the  learned  arguments  of  W.  L.  Penfield,  Solicitor  of  the 
Department  of  State,  839-848.  See  also  the  legal  opinion  (Gutachten)  of  Profes- 
sor Ludwig  von  Bar,  given  at  the  request  of  the  Government  of  Salvador,  which  is 
printed  under  the  title  "Eine  Internationale  Rechtsstreitigkeit,"  in  45  Jhering's 
Jahrbucher,  161-210. 

See  also  the  case  of  May  (U.  S.)  v.  Guatemala,  For.  Rel.,  1900,  648-674,  Jenaer, 


294  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

Numerous  other  cases  have  occurred,  particularly  in  Venezuela, 
where  the  arbitrary  annulment  of  a  contract  by  the  Executive  without 
appeal  to  the  courts  was  held  to  justify  diplomatic  interposition  and 
to  render  the  government  liable.^  Nor  has  the  presence  of  the  Calvo 
clause  in  the  contract,  by  which  the  alien  contractor  undertakes  to 
make  the  local  courts  his  final  forum  and  to  forego  his  right  to  claim 
the  diplomatic  protection  of  his  own  government,  been  considered  as 
denying  to  the  claimant's  government  the  right  to  interpose  in  his 
behalf  where  there  has  been  an  arbitrary  annulment  of  the  contract 
by  the  local  government.  This  conclusion  has  been  based  on  one  of 
several  grounds.  In  some  cases,  the  arbitrar}'-  action  of  the  government 
was  held  to  be  a  tort,  thus  rendering  the  construction  of  the  contract 
unnecessary.  In  other  cases,  the  arbitrary  action  and  the  failure  of 
the  government  to  secure  a  judicial  construction  in  first  instance  was 
held  to  relieve  the  claimant  from  his  own  stipulation  to  resort  to  the 
local  courts  and  forego  the  diplomatic  protection  of  his  government. 
In  any  event,  it  was  held  that  the  citizen  could  not  contract  away  the 
right  of  his  own  government  to  interpose  diplomatically  in  his  behalf, 
the  right  of  his  government  to  intervene  being  superior  to  the  right  or 
competency  of  the  individual  to  contract  it  away.^ 

Arbitrator,  Moore's  Dig.  VI,  730.  In  Oliva  (Italy)  v.  Venezuela,  Feb.  13,  May  7, 
1903,  it  was  held  that  claimant's  unlawful  expulsion,  preventing  compliance  with 
the  contract,  was  an  arbitrary  act,  justifying  damages  for  money  expended  and  time 
lost.  Ralston  771.  See  also  Paquet  (Belgium)  v.  Venezuela,  March  7,  1903,  Ralston, 
269;  Aboilard  (France)  v.  Hayti,  June  15,  1904,  Arbitrators  Vignaud,  Renault  and 
Solon  Menos,  12  R.  G.  D.  I.  P.  (1905),  Documents,  12,  13-17;  Punchard  et  al.,  Antio- 
quia  Railway  (Gt.  Brit.)  v.  Colombia,  July  31,  1896,  88  St.  Pap.  19;  La  Fontaine, 
Pasicrisie  internationale,  544;  Cedroni  (Italy)  v.  Guatemala,  March  18,  1898,  La 
Fontaine,  op.  cit.,  606;  the  concessions  in  the  last  case  were  gratuitous. 

1  Sen.  Doc.  413,  60th  Cong.,  Ist  sess.,  p.  105.  RudlofT  (U.  S.)  v.  Venezuela,  Feb.  17, 
1903,  Ralston,  187;  Kunhardt  (U.  S.)  v.  Venezuela,  Morris's  Rep.,  Sen.  Doc.  317, 
58th  Cong.,  2nd  sess.,  189-190;  Selwyn  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903, 
Ralston,  322;  North  &  South  American  Construction  Co.  (U.  S.)  ik  Chile,  Aug.  7, 
1892,  Moore's  Arb.  2318,  and  final  settlement  in  For,  Rel.,  1895,  I,  85-86;  Milligan 
(U.  S.)  V.  Peru,  Dec.  4,  1868,  Moore's  Arb.  1643. 

2  Martini  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  819;  Selwyn  (Gt.  Brit.)  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  322;  Milligan  (U.  S.)  v.  Peru,  Dec.  4,  1868,  Moore's 
Arb.  1643;  Delagoa  Bay  Railway  case,  McMurdo  (U.  S.  and  Great  Britain)  ;;. 
Portugal,  June  13,  1891,  Moore's  Arb.  1865;  see  also  International  Law  Associa- 
tion, 24th  Rep.  (1908),  address  of  Jackson  H.  Ralston,  pp.  192,  193;  Mr.  Bayard  to 


QUALIFICATIONS    OF    GENERAL   UULE    OF   NON-INTERPOSITION       295 

3.  Various  acts  of  foreign  governments  have  been  construed  as  suf- 
ficiently arbitrary  to  warrant  the  United  States  in  intervening  in  con- 
tract claims  or  to  authorize  international  commissions  to  award  in- 
demnities. Thus,  the  proposed  depreciation  by  Haiti  of  the  value  of 
certain  bonds  issued  to  American  citizens  for  work  and  materials  was 
held  to  justify  the  United  States  in  protesting  and  eventually  inter- 
fering.^ Lord  Salisbury,-  the  British  Foreign  Secretary,  protested  like- 
wise against  a  proposed  act  of  Peru  tending  to  weaken  certain  security 
hypothecated  to  the  holders  of  Peruvian  bonds.  So,  the  diversion  of 
the  security  of  certain  revenue  pledged  to  the  payment  of  the  claims  of 
citizens  of  the  United  States,  even  when  contractual  in  origin,  has  been 
held  to  warrant  interposition.^ 

4.  The  United  States  has  on  several  occasions  intervened  to  secure 
the  payment  to  one  of  its  citizens  of  the  damages  arising  through  breach 
of  contract  by  a  foreign  government  where  such  breach  involved  an 
element  of  tort.  Thus,  the  seizure  by  the  President  of  the  Dominican 
Republic  of  the  Ozama  bridge  brought  about  the  diplomatic  interposi- 
tion of  the  United  States  in  behalf  of  Thurston,  an  American  engineer 
who  had  built  the  bridge  under  contract  with  that  government.^  The 
most  recent  case  of  this  character  was  the  arbitrary  expulsion  of 
Treasurer-General  Shuster  from  Persia,  in  which  case  the  Department 
of  State  took  an  interest  and  by  its  firm  position  helped  to  secure  the 
full  payment  of  salary  for  the  entire  unexpired  time  of  the  contract.'^ 

5.  The  equitable  character  of  the  claim  has  at  times  induced  the 

Mr.  Scott,  Minister  to  Venezuela,  June  23,  1887,  Moore's  Dig.  VI,  725.  Infra,  §  371 
el  seq. 

1  Mr.  Sherman,  Sec'y  of  State,  to  Mr.  Powell,  Minister  to  Haiti,  Oct.  26,  1897, 
Moore's  Dig.  VI,  729. 

^  Lord  Salisbury,  British  Foreign  Sec'y,  to  Senor  Pividal,  Peruvian  Minister, 
Nov.  26,  1879,  quoted  from  Parliamentary  Papers  in  Moore's  Dig.  VI,  724. 

»  Walter  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3567-3568;  Moses  (U.  S.) 
V.  Me.xico,  July  4,  1868,  Moore's  Arb.  3465.  See  also  the  cancellation  of  the  Gref- 
fuhle  concession  in  Zanzibar  (France)  v.  Great  Britain,  1892,  La  Fontaine,  618, 
Moore's  Arb.  4939. 

*  Ozama  Bridge  claim,  Thurston  (U.  S.)  v.  Dominican  Republic,  For.  Rel.,  1898, 
274-291. 

'  Article  of  Clement  L.  Bouv6,  Russia's  liability  in  tort  for  Persia's  breach  of  con- 
tract, citing  note  of  Secretary  of  State  Knox  of  Dec.  1,  1911,  6  A.  J.  I.  L.  (1912), 
396-407. 


296  THE   DIPLOMATIC    PKOTECTION    OF    CITIZENS   ABROAD 

Department  of  State  to  recede  from  its  rigorous  position  of  declining 
interposition  where  the  claim  originated  in  a  contract.^ 

Equitable  considerations  alone,  however,  have  rarely  induced  any 
stronger  action  than  the  use  of  good  offices. 

6.  Where  a  definite  arrangement  for  the  liquidation  of  the  claim  has 
been  made  between  the  alien  and  the  government,  it  will  generally  be 
enforced  by  diplomatic  pressure,  notwithstanding  its  contractual  origin.^ 

§  115.  Arbitration. 

7.  Whatever  hesitation  there  may  have  been  on  the  part  of  the  Ex- 
ecutive to  interpose  diplomatically  in  behalf  of  citizens  injured  through 
the  breach  of  a  contract  concluded  with  a  foreign  government,  the 
Department  of  State  has  generally  been  willing  to  submit  contract 
claims  to  the  adjudication  of  international  commissions,  and  these 
conmiissions  have  in  general  exercised  jurisdiction  over  contract  claims 
as  over  other  claims.^    In  instructions  given  by  Mr.  Pickering  on  Octo- 

•  Mr.  Evarts,  Sec'y  of  State,  to  Sir  E.  Thornton,  May  2,  1879,  Wharton's  Dig. 
II,  658;  see  also  correspondence  between  Mr.  Fish  and  Mr.  Thomas  in  1874  in 
the  Landreau  case  v.  Peru,  Moore's  Dig.  VI,  714-715. 

2  Lord  John  Russell,  British  Foreign  Sec'y,  to  Sir  C.  L.  Wyke,  Mar.  30,  1861,  52 
St.  Pap.  238,  quoted  also  in  Moore's  Dig.  VI,  719;  Claim  of  Waring  Brothers,  rail- 
road contractors  (Gt.  Brit.)  v.  Brazil,  in  which  Great  Britain  insisted  on  the  carrying 
out  by  Brazil  of  a  decree  which  appropriated  an  indemnity  for  the  loss  sustained  by 
Waring  Brothers  due  to  the  government  rescinding  the  contract.  Moore's  Dig.  VI, 
720-721,  For.  Rel.,  1887,  54,  55.  Sparrow  claim  v.  Peru,  For.  Rel,  1895,  II,  1036- 
1055;  1896,  492-494.  The  French  claims  against  Venezuela  liquidated  under  the 
convention  of  June  29,  1864,  Moore's  Dig.  VI,  711-712.  See  also  the  settlement  of 
the  claim  of  W.  R.  Grace  (U.  S.)  v.  Peru,  in  which  the  failure  of  the  government  to 
carry  out  a  judgment  against  it  was  construed  as  a  denial  of  justice  warranting 
diplomatic  intervention.  Mr.  Neill  to  Mr.  Hay,  Sec'y  of  State,  Nov.  19,  1903, 
For.  Rel.,  1904,  678. 

^  Contract  claims  have  been  submitted  to  general  mixed  commissions  dealing  with 
general  claims  (as,  for  example,  the  U.  S.-Mexican  commissions  of  1839  and  1868. 
the  U.  S.-Venezuelan  commissions  of  1885  and  1903  and  many  others)  and  to  special 
(commissions  instituted  to  decide  single  claims  (as,  for  example,  the  claim  of  Metzger 
&  Co.  (U.  S.)  V.  Haiti,  October  18,  1899,  Day,  Arbitrator,  For.  Rel.,  1901,  262-276, 
and  that  of  the  San  Domingo  Improvement  Co.  (U.  S.)  v.  Dominican  Republic, 
Jan.  31,  1903,  For.  Rel.,  1904,  270.  See  also  Bordes  (France)  v.  Chile,  1897,  La  Fon- 
taine, 618  (award  unpublished);  Freraut  (France)  v.  Chile,  July  3,  1897,  LaFontaine, 
579.  General  mixed  commissions  have  assumed  jurisdiction  of  contract  claims  under 
the  customary  inclusive  terms  of  the  protocol  "all  claims,"  and  even  "claims" 
arising  out  of  "injury  to  person  or  property  of  citizens." 


i 


ARBITRATION  29''^ 

ber  22,  1799,  to  the  American  plenipotentiaries  to  France,  the  envoys 
were  directed  to  secure  the  adjustment  of  "all  claims"  of  citizens  of 
the  United  States  against  that  government,  and  among  these  there 
were  expressly  enumerated  the  "sums  due"  to  American  citizens  by 
contracts  with  the  French  government,  or  its  agents.^ 

By  the  convention  between  the  two  countries  of  April  30,  1803,  for 
the  "paj^ment  of  sums  due"  by  France  to  citizens  of  the  United  States, 
provision  was  made  for  the  satisfaction  of  "debts."  -  In  the  treaty  ot 
February  22,  1819,  between  the  United  States  and  Spain,  by  which 
each  government  renounced  "all  claims"  of  its  citizens  or  subjects 
against  the  other  government,  Mr.  Adams,  Secretary  of  State,  con- 
sidered that  contract  claims  had  been  included  among  those  renounced.^ 
]\Ir.  Adams  added  that  there  was  no  doubt  of  the  right  of  the  govern- 
ment to  include  such  claims  in  the  provisions  of  the  treaty. 

Practically  ail  international  commissions,  where  the  terms  of  sub- 
mission in  the  protocol  could  be  construed  as  sufficiently  broad,  have 
exercised  jurisdiction  over  contract  claims,  for  example,  the  United 
States-Spanish  Commission  of  Februarj'  22,  1819,  the  three  Mexican 
commissions  of  April  11,  1839,  of  March  3,  1849  (domestic)  and  of 
July  4,  1868,  the  United  States-British  Commission  of  February  8, 
1853  and  August  18,  1910,  the  United  States-Peruvian  Commission  of 
January  12,  1863,  the  United  States-French  Commission  of  January-  15, 
1880,  the  United  States- Venezuelan  Commission  of  December  5,  1885, 
the  Venezuelan  Commissions  of  1903  sitting  at  Caracas,  and  many 
others.^    A  conflict  arose  in  the  commission  of  July  4,  1868,  due  to  the 

>  Am.  St.  Pap.,  For.  Rel.,  vol.  2,  242,  301,  303;  see  also  Moore's  Dig.  VI,  707-708. 

2  Moore's  Dig.  VI,  708. 

3  Moore's  Dig.  VI,  717-718;  Moore's  Arb.  4502-4505. 

*  See  Moore's  Dig.  VI,  718;  Ralston,  Report  of  Venezuelan  Commissions;  Moore's 
Arb.  3425-3590;  J.  Hubley  Ash  ton,  agent  of  the  United  States  before  the  Mixed  Com- 
mission with  Mexico  of  July  4,  1868,  in  an  elaborate  argument  in  the  case  of  the 
State  Bank  of  Hartford  (No.  535)  and  other  similar  cases,  opposing  a  motion  to  dis- 
miss for  want  of  jurisdiction  over  contract  claims,  analyzed  carefully  the  practice  of 
the  United  States  and  the  jurisdiction  of  international  commissions  in  the  matter  of 
contract  claims,  especially  under  a  protocol  submitting  "all  claims  .  .  .  arising  out 
of  injuries  to  .  .  .  person  or  property."  He  cited  decisions  of  municipal  courts 
and  international  tribunals  to  show  that  under  the  terms  "all  claims"  and  "injuries" 
breaches  of  contract  were  included.  Among  others  he  cited  decisions  of  the  commis- 
sions under  the  treaty  with  Spain,  1819  (8  Stat.  L.  258);  with  Great  Britain,  1853 


298  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

difficulty  of  reconciling  vacillating  opinions  with  proper  judicial  action. 
Commissioners  Wadsworth,  Palacio  and  Umpire  Lieber  (though  the 
latter  was  not  always  consistent)  had  allowed  claims  on  contracts 
concluded  between  citizens  of  the  United  States  and  agents  of  Mexico 
for  the  furnishing  of  arms,  munitions,  and  other  material  to  the  Mexican 
government,  on  the  ground  that  the  failure  to  pay  for  such  goods  con- 
stituted an  ''injury"  to  the  "property"  of  an  American  citizen  under 
the  terms  of  the  protocol.  The  Mexican  commissioner,  Palacio,  while 
adhering  to  the  view  of  his  colleagues  that  contract  claims  were  within 
the  jurisdiction  of  the  commission,  believed  that  a  demand  and  refusal 
of  payment  was  a  condition  precedent  to  the  allowance  of  the  claim. 
Subsequently,  upon  the  death  of  Dr.  Lieber  and  the  resignation  of 
Commissioner  Palacio,  Sir  Edward  Thornton  became  umpire  and 
Seiior  Zamacona  the  Mexican  commissioner.  Thereupon  a  different 
view  was  taken  as  to  the  jurisdiction  of  the  commission  over  contract 
claims.  Sir  Edward  Thornton  considered  that  he  ought  to  follow  the 
practice  of  the  Executive  of  exercising  discretion  in  assuming  jurisdic- 
tion of  contract  claims,  for  which  reason,  while  admitting  the  juris- 
diction of  the  commission  over  contract  claims,  he  declined  to  allow 
such  as  were  based  upon  voluntary  contract,  in  the  absence  of  clear 
proof  of  the  contract  and  proof  that  gross  injustice  had  been  done  by 
the  defendant  government.  The  decisions  of  the  commission,  there- 
fore, are  at  times  contradictory,  claims  of  exactly  the  same  nature 
having  been  allowed  by  Wadsworth,  Palacio  and  Lieber,  and  rejected 
when  Zamacona  became  the  Mexican  commissioner  and  Thornton 
the  umpire.^ 

(10  Stat.  L.  998);  with  New  Granada,  1857  (12  Stat.  L.  985);  with  Costa  Rica,  1860 
(12  Stat.  L.  1139);  with  Colombia,  1864  (13  Stat.  L.  685);  with  Ecuador,  1862  (13 
Stat.  L.  633);  with  Peru,  1863  (13  Stat.  L.  639);  with  Venezuela,  1866  (16  Stat.  L. 
316),  and  with  Peru,  1868  (16  Stat.  L.  349).  He  also  mentioned  the  three  Me.xican 
conmiissions.    The  argument  is  on  file  in  the  Department  of  State  Librar3'. 

•  A  full  discussion  of  this  perplexing  question  before  the  commission  wixs  under- 
taken by  Commissioner  Wadsworth  in  the  case  of  Treadwell  &  Co.  (U.  S.)  v.  Mexico, 
July  4,  1868,  quoted  at  length  in  Opinions  of  the  Commission,  vol.  4,  248,  and  vol.  7, 
383.  The  claims  were  allowed  in  the  cases  of  Manasse,  Moore's  Arb.  3462-3464; 
Iturria,  ibid.  3464;  Moses,  Assignee,  ibid.  3465;  Newton,  ibid.  3465;  Morrill,  ibiil. 
3465,  and  were  disallowed  by  Thornton,  umpire,  in  cases  of  supplies  furnished,  serv- 
ices rendered  and  other  claims  based  on  voluntary  contract  in  the  Phipps  case,  ibid. 


ARBITRATION  299 

There  have  been  occasions  when  general  international  commissions 
have  not  exercised  jurisdiction  over  contract  claims.^  It  was  agreed 
by  the  United  States  and  Spain  in  the  claims  convention  of  February  12, 
1871,  that  the  arbitrators  were  not  to  have  jurisdiction  of  claims  grow- 
ing out  of  contract." 

Where  jurisdiction  has  been  exercised  by  mixed  commissions,  as 
is  the  general  rule,  the  contract  has  been  examined  as  would  any  other 
instrument  open  to  judicial  construction.^  Among  other  factors  the 
authority  of  the  person  contracting  as  agent  for  the  government  is 
always  closely  examined.  The  general  rules  of  agency  are  applied,* 
although  municipal  courts  have  made  distinctions  between  cases  in 
which  the  government  rather  than  a  private  individual  is  the  principal. 

A  contract  for  unneutral  service  will  as  a  general  rule  not  be  enforced 
either  by  municipal  ^  or  international  ®  courts.     There  have  been  a 

3468;  Treadwell,  ibid.  3468;  Pond,  ibid.  3467;  Nolan,  ibid.  3484;  Light,  ibid.  3484. 
Wallace,  ibid.  3475;  Kennedy  4c  King,  ibid.  3474;  State  Bank  of  Hartford,  ibid.  3473; 
Shumaker,  ibid.  3472;  Chase,  ibid.  3469;  Kearney,  ibid.  3468;  Sturm  {dictum), 
ibid.  2756;  Dennison,  ibid.  2766;  De  Witt,  ibiii.  3466;  Widman,  ibid.  3467.  Lieber'a 
decision  in  disallowing  the  claim  of  There  de  Lespes  for  the  hire  of  a  steam  tug  to 
Mexico  {ibid.  3466)  is  inconsistent  with  his  other  opinions. 

1  U.  S.-British  Mixed  Commission  of  May  8,  1871.  See  Hubbell  (U.  S.)  v.  Great 
Britain,  Moore's  Arb.  3484-6;  Hale's  Rep.  40;  Howard's  Rep.  160,  752,  754. 

2  Agreement  of  Feb.  11-12,  1871,  art.  15,  Moore's  Arb.  4802-4803. 

'  Turnbull,  Manoa,  Limited,  Orinoco,  et  al.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903, 
Ralston,  244,  where  Barge  held  a  certain  contract  void  ab  initio.  See  also  American 
Electric  and  Manufacturing  Co.  {V.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  250, 
where  Barge  held  a  promise  to  declare  void  an  existing  contract  as  an  illegal  promise. 
See  also  Frear  (U.  S.)  v.  France,  Jan.  15,  1880,  Moore  s  Arb.  3488-3491;  Boutwell's 
Rep.  202,  where  it  was  found  that  the  claimant  had  not  performed  the  contract  on 
his  part. 

*  Lew  Wallace  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3475-3476,  in  which 
case  the  Mexican  agent  had  acted  beyond  the  scope  of  his  authority,  for  which  reason 
the  contract  was  held  not  binding  on  Mexico.  See  also  Beales,  Nobles  &  Garrison 
case  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3548-3564.  In  Zander  (U.  S.) 
V.  Mexico,  March  3,  1849,  Moore's  Arb.  3433,  the  failure  to  show  the  original  author- 
ity of  the  agent  or  the  subsequent  ratification  of  his  acts  by  the  government  barred 
the  claim.  In  Trumbull  (Chile)  v.  United  States,  Aug.  7,  1892,  an  award  was 
made  on  the  ground  that  claimant  had  a  right  to  assume  that  the  United  States 
minister  in  engaging  his  legal  services  was  authorized  so  to  do;  see  supra,  p.  183. 

5  Kennett  et  al.  v.  Chambers,  14  How.  38;  Du  Wurtz  v.  Hendricks,  9  Moore's  C.  B, 
Rep.  586;  see  also  Kent's  Commentaries,  I,  116. 

» CucuUu  (U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  3478-3479;  Fitch  (U.  S.)  ». 


300  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

few  occasions  where  international  commissions  on  the  ground  of  equity 
or  waiver  of  the  illegality  have  made  awards  on  unneutral  contracts, 
This  is  especially  so  where  the  political  party  aided  was  successful  or 
became  at  least  a  defado  government.^ 

The  domestic  commission  under  the  Act  of  March  3,  1849,  held  that 
while  the  United  States  was  not  justified  in  pressing  a  claim  growing 
out  of  services  in  violation  of  the  claimant's  neutrality  as  a  citizen  of 
a  neutral  nation,  yet  if  Mexico,  the  nation  against  whom  such  claim 
existed,  sees  proper  to  waive  the  objection  and  agrees  to  recognize  the 
claim,  the  tribunal  cannot  assume  for  it  a  defense  expressly  waived.^ 

Speculative  contracts  are  not  enforced.^  The  service  itself  where 
of  an  extraordinary  character,  such  as  the  giving  of  advice  in  battle, 
has  been  held  not  measurable  in  money  damages,  but  calling  rather  for 
a  monument  or  some  other  mark  of  national  gratitude.'*  While  it  has 
been  noted  that  as  a  general  rule  a  claim  for  voluntary  services  is  not 
pressed  by  the  Department  of  State,  international  commissions,  with 
the  exception  of  the  United  States-Mexican  Commission  of  1868  after 
Thornton  became  umpire,  have  not  hesitated  to  allow  damages  for 
services  thus  rendered.  They  have  occasionally  held,  however,  that 
a  demand  for  payment  must  be  made  upon  the  debtor  government.^ 

Mexico,  July  4,  1868,  ibid.  3476-3477;  WaUace  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid. 
3475-3476. 

1  Lake  (U,  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2755,  Opinion  by  Palacio, 
Commissioner;  Chew  (U.  S.)  v.  Mexico,  April  11,  1839,  ibid.  3428,  and  other  cases 
there  cited;  Hunter,  Duncan  et  al.  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb. 
3427;  CucuUu  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3478-3479;  claims  of  Stephen 
Codman,  No.  86,  and  John  and  Robert  Gamble,  No.  1783,  were  allowed  by  the 
mixed  commission  under  the  treaty  with  Spain  of  1819,  cited  in  Ashton's  argument, 
Kupra. 

2  Meade  (U.  S.)  v.  Mexico,  Act  of  March  3,  1849,  Moore's  Arb.  3430,  3432.  Other 
commissions  have  held  that  only  the  nation  whose  laws  have  been  violated  can 
waive  the  illegality,  and  not  the  state  aided  by  the  unneutral  act. 

'  Taussig  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3472-3473,  where  the  non- 
iiilfillment  of  a  contract  for  the  sale  of  vessels,  etc.,  to  a  government,  said  vessels 
liaving  been  purchased  as  a  speculation  on  their  subsequent  sale,  was  held  not  to  be 
;iii  injury  to  person  or  property  within  the  meaning  of  the  protocol.  See  also  Oliva 
If:il>)  ;;.  Venezuela,  Feb.  13,  1903,  Ralston,  780;  see  also  American  Trading  Co.  v. 
'Jhiiicso  Indemnity  Fund,  47  Ct.  CI.  563,  569. 

TVDuyor  (V.  S.)  V.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3568. 

^Cucullu  (V.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  3483.    Palacio  in  a  dictum 


ARBITRATION  301 

Where  the  debt  has  been  acknowledged  there  is  usually  no  hesitation 
either  on  the  part  of  the  government  or  of  international  commissions 
respectively  to  demand  and  to  allow  damages  on  claims  arising  out  of 
contract.^     Such  acknowledgment  has   even  been  held  to  purge  the 

said  that  under  the  word  "injury"  a  mere  omission  of  payment  of  a  debt  makes 
it  necessary  to  bring  it  to  the  knowledge  of  the  defendant  government.  Through- 
out the  commission  Palacio  held  that  notice  and  a  refusal  of  payment  were  con- 
ditions precedent  to  a  valid  claim.  Union  Land  Company  et  al.  (U.  S.)  v.  Mexico, 
Act  of  Congress,  Mar.  3,  1849,  Moore's  Arb.  3440,  service  rendered  in  securing  im- 
migrants. Meade  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Moore's  Arb.  3431,  expenses 
incurred  in  fitting  out  vessel  in  service  of  Mexico.  The  Hermon,  Green  (U.  S.)  v. 
Mexico,  April  11,  1839,  Moore's  Arb.  3425,  repairs  and  ship  stores  furnished  to  a 
vessel  of  war.  Boulton  et  al.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  26-29, 
carrying  the  mails.  Turini  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  51-52,  serv- 
ices rendered  as  a  sculptor.  The  Great  Venezuelan  Railroad  (Germany)  v.  Venezuela, 
Feb.  13,  1903,  Ralston,  638,  railroad  forcibly  used  to  carry  troops.  Hudson  Bay  Co. 
(Gt.  Brit.)  V.  U.  S.,  Feb.  8,  1853,  Moore's  Arb.  3459,  goods  supplied  to  shipwrecked 
sailors  and  other  citizens  of  the  United  States  to  secure  their  relief  from  captivity  by 
savage  Indians  and  in  repelling  attacks,  which  service  the  government  should  have 
rendered.  Underhill  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Moore's  Arb.  3433,  charter  of 
a  vessel.  Ulrick  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Moore's  Arb.  3434,  lease  of  house 
for  legation.  Eldredge  (U.  S.)  v.  Peru,  Jan.  12,  1863,  Moore's  Arb.  3462,  suppUes 
furnished  to  Peruvian  army.  Dundonald  (Gt.  Brit.)  v.  Brazil,  Apr.  22,  1873,  Moore's 
Arb.  2107-2108,  military  service  rendered  by  Admiral  Lord  Cochrane.  Arbitration 
between  Great  Britain  and  Portugal  in  1840,  for  compensation  due  British  soldiers 
and  officers  for  services  rendered  to  Portugal  in  her  war  of  hberation.  La  Fontaine, 
93,  636.  It  is  not  the  policy  of  the  United  States  to  espouse  claims  for  miUtary  serv- 
ice rendered  to  foreign  governments,  whether  claims  for  gratuitous  or  statutory  pen- 
sions, or  payment  of  salary.  Notwithstanding  the  uniform  rule,  the  Department 
of  State  allowed  out  of  the  Boxer  Indemnity,  the  claim  of  General  Frederick  Ward  for 
services  rendered  in  putting  down  the  "Taiping  Rebellion"  in  China.  Several 
administrations  had  previously  rejected  the  claim  because  of  its  character  and  in- 
trinsic lack  of  merit.    For.  Rel.,  1888,  I,  199. 

On  the  services  rendered  to  Mexico  by  American  citizens  see  a  pamphlet,  "The 
Republic  of  Mexico  and  its  American  creditors.  The  unfulfilled  obligations  of  the 
Mexican  Republic  to  citizens  of  the  V.  S.  from  whom  it  obtained  material  aid  on 
credit."    (Indianapolis,  Douglass  &  Conner,  1869,  94  p.) 

1  Sparrow  (U.  S.)  v.  Peru,  For.  Rel.,  1895,  II,  1036-1055;  settled  in  1896,  For.  Rel., 
1896,  492^94;  Lord  J.  Russell  to  Sir  C.  K.  Wyke,  Mar.  30,  1861,  in  the  case  of 
British  bondholders  whose  unpaid  bonds  were  converted  into  a  liquidated  debt 
against  Mexico,  52  St.  Pap.  238-239;  Cox  &  Elkins  (U.  S.)  v.  Mexico,  Mar.  3,  1849, 
Moore's  Arb.  3430;  Parrott  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  ibid.  3430;  Eckford 
(U.  S.)  V.  Mexico,  Mar.  3,  1849,  Op.  435  (not  in  Moore);  Mercantile  Insurance  Co. 
(U.  S.)  v.  Mexico,  Mar.  3,  1849,  Moore's  Arb.  3429;  Meyer  (U.  S.)  v.  Mexico,  Mar.  3, 
1849,  ibid.  2380;  Rosenwig,  Crosby  et  al.  (U.  S.)  v.  Peru,  Dec.  4,  1868,  ibid.  1651- 


302  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

contract  of  illegality,  as,  for  example,  the  unneutral  character  of  the 
act. 

BONDS   OF   PUBLIC   DEBT 

§  116.  Claims  Arising  out  of  Unpaid  Bonds. 

We  may  now  consider  the  third  class  of  contract  claims,  those  arising 
out  of  a  foreign  government's  unpaid  bonds,  held  by  a  citizen.  These 
obligations  of  the  state  differ  m  many  respects  from  the  contractual 
obligations  arising  out  of  a  contract  for  concessions  or  the  execution  of 
public  works.  In  the  latter  case,  the  government  has  entered  into 
relations  with  a  definite  person;  in  the  former,  as  bonds  are  usually 
payable  to  bearer  and  negotiable  by  mere  delivery,  the  state  never 
knows  to  whom  it  is  indebted  until  the  bonds  are  presented  for  pay- 
ment. 

Some  pubUcists  regard  such  a  bond  as  a  contractual  obligation  sub- 
ject to  the  same  rules,  both  in  interpretation  and  enforcement,  as  or- 
dinary contract  debts.  ^  Hall  even  goes  so  far  as  to  liken  in  principle  a 
breach  of  a  monetary  agreement,  e.  g.,  the  non-payment  of  public  loans, 
to  tortious  injuries  committed  by  the  government,  though  he  admits  a 
difference  in  practice  in  enforcing  the  two  classes  of  claims.^  The  un- 
paid bond  of  a  foreign  government  held  by  a  citizen  has  been  a  frequent 
and  most  perplexing  cause  of  international  conflict. 

§  117.  Nature  of  Public  Loan  and  Law  Governing. 

Before  discussing  the  nature  of  the  enforcement  of  rights  arising  out 

of  public  debts,  it  is  desirable  to  examine  the  nature  of  the  contract 

and  the  law  governing  the  transaction  of  subscribing  to  the  public  loan 

of  a  foreign  state.     If  the  lending  citizen  is  domiciled  in  the  country 

emitting  the  loan,  the  contract  may  for  many  purposes  be  regarded 

as  subject  to  the  law  of  the  debtor  country.     When,  however,  as  is 

generally  the  case  in  external  loans,  the  lending  citizen  or  subsequent 

transferee-holder  is  domiciled  not  in  the  debtor  country,  but  in  his 

1652;  Hammaken  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  ibid.  3471;  Corcuera  (Spain)  v. 
Venezuela,  Apr.  2,  1903,  Ralston,  936. 

'  Vattel,  Bk.  II,  ch.  XIV,  §§  214-216;  Phillimore,  3rd  ed.,  II,  ch.  Ill,  8  et  seq.  See 
opinion  of  Findlay,  commissioner,  in  case  of  Aspinwall  before  U.  S.-VenezueJat» 
commission  of  1885,  Moore's  Arb.  3650. 

2  HaU,  6th  ed.,  276. 


NATURE    OF    PUBLIC    LOAN   AND    LAW    GOVERNING  303 

own  or  some  other  state,  difficult  questions  in  the  conflict  of  laws  and 
in  international  law  are  encountered.  Is  the  transaction  one  of  private 
or  public  law,  and  if  private,  what  law  governs  its  interpretation? 

In  the  first  place  it  may  be  admitted  that  a  contract  has  been  con- 
cluded. If  it  is  a  contract  of  private  law  concluded  by  the  state  in  its 
capacity  as  an  ordinary  contractor  (jure  gestionis),^  there  would  be 
some  ground  for  asserting  that  the  contract  is  subject  to  the  local  law 
of  the  debtor  state,-  or  as  the  contract  is  often  to  be  performed  in  the 
country  of  the  lending  citizen,  where  the  interest  and  principal  are 
sometimes  to  be  paid,  that  the  law  of  the  place  of  performance  governs. 
Again,  the  loan  may  be  subscribed  in  a  third  state,  as,  for  example, 
where  a  Chinese  loan  is  underwritten  by  a  New  York  banker,  the  in- 
dividual bonds  being  held  by  citizens  of  Germany;  the  loan  having 
been  made  in  a  third  state,  the  lex  lod  might  be  regarded  as  the  law 
governing  the  contract.  Other  possibilities  have  been  suggested,  as, 
for  example,  where  the  loan  has  been  guaranteed,  that  the  law  of  the 
guaranteeing  state  governs,^  or  that  the  parties  themselves  may  agree 
on  the  law  governing  the  contract."* 

If  the  contract  were  concluded  between  individuals  or  between  a 
municipal  corporation  and  an  individual,  the  above  theories  might 
warrant  consideration.  The  factor  which  makes  the  public  loan  a  con- 
tract sui  generis  is  that  one  of  the  contracting  parties  is  a  sovereign 
and  therefore  not  subject  to  the  ordinary  rules  of  legal  obligation,  and 

^  We  cannot  here  discuss  the  distinctions  between  contracts  made  by  a  govern- 
ment in  its  capacity  as  a  business  corporation  and  engagements  contracted  in  its 
character  as  a  sovereign.  We  may  merely  note  the  usual  rule  of  the  suability  of  the 
government  on  contracts  of  the  former  category,  and  it-s  immunity  in  the  case  of 
contracts  of  the  latter  description.    See  supra,  p.  127  et  seq.,  170. 

2  Freund,  G.  S.,  Die  Rechtsverhaltnisse  der  offentlichen  Anleihen,  Berlin,  1907, 
64  et  seq.  This  is  probablj-  the  most  thoughtful  book  on  the  subject  of  public  loans. 
Loening,  Edgar,  Die  Gerichtsbarkeit  iiber  fremde  Staaten  und  Souverane,  Halle, 
1903,  256  and  authorities  there  cited.  See  also  Freund,  G.  S.  Der  Schutz  der  Glau- 
biger  gegeniiber  auswartigen  Schuldnerstaaten,  Berhn,  1910,  14;  Pflug,  Karl, 
Staatsbankerott  und  internationales  Recht,  Miinchen,  1898,  15-16;  Cuvelier  in 
20  R.  D.  I.  (1888),  111. 

'  Wuarin,  Albert,  Essai  sur  les  emprunts  d'etats,  Paris,  1907,  88  et  seq.;  Imbert, 
Henri  M.,  Les  emprunts  d'etats  etrangers,  Paris,  1905,  50  et  seq.,  96. 

*  Meile,  Fr.,  Das  Internationale  Zivil-  und  Handelsrecht,  U,  57;  Clerin,  Georges^ 
Inexecution  par  un  etat  de  ses  engagements  financiers  exterieurs,  Dijon,  1908. 


304  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

the  other  a  non-resident  ahen,  against  whom  the  local  territorial  law  is 
not  enforceable.^  The  debt  is  generally  authorized  and  created  by  an 
act  of  legislation,  which  escapes  all  judicial  review.  The  inherent  res- 
ervation of  the  possibility  of  modifying  the  terms  of  the  loan,  suspend- 
ing or  even  repudiating  it  by  an  act  of  sovereignty  similar  to  that  which 
created  it,  has  led  some  writers  to  the  conclusion  that  the  obligation  of 
the  state  is  one  of  honor  only,  a  moral,  and  not  a  legal  obligation,^  so 
far  at  least  as  its  enforcement  in  municipal  courts  is  concerned.  Freund 
tells  us  that  several  German  writers  regard  it  as  discretionary  with  the 
state  whether  it  will  take  up  foreign  loans.  ^  Zorn  even  regards  the 
payment  of  interest  as  the  exercise  of  a  sovereign  right.  ^  The  failure  of 
a  state  therefore  to  take  up  a  public  loan,  not  being  justiciable  in  mu- 
nicipal courts,  has  been  regarded  as  not  legally  a  breach  of  a  contractual 
obligation.  This  confuses  the  nature  of  the  contract  with  the  means 
of  its  enforcement. 

The  foreign  citizen  would  never  lend  his  money  on  such  uncertain 
security.  He  does  in  no  sense  regard  himself  as  subject  to  the  local  law 
of  the  debtor  state,  as  he  has  never  entered  its  territorial  jurisdiction. 
His  rights  as  lender  and  the  obligations  of  the  debtor  are  derived  from 
the  contract  of  loan  which  neither  the  creditor  nor  his  government  re- 
gards as  purely  one  of  private  law  to  be  interpreted  by  the  local  courts 
of  the  debtor  state. 

The  mixed  private  and  public  nature  of  the  transaction  of  subscrib- 
ing to  a  foreign  loan  shows  that  it  partakes  of  the  nature  of  an  inter- 
national contract,  and  that  its  breach,  if  not  justiciable  before  municipal 
courts,  does  give  rise,  under  certain  circumstances,  to  the  diplomatic 
interposition  of  the  national  government  of  the  creditor,  and  in  practice 
has  at  times  resulted  in  armed  intervention.  These  questions  will  be 
discussed  hereafter. 

The   transaction   of  subscription   to  a  foreign  public  loan  is  not 

1  Freund,  Der  Schutz  der  Glaubiger,  etc.,  15;  Wuarin,  op.  cii.,  34. 

"^  Bar,  Ludwig  von,  The  theory  and  practice  of  private  international  law  (2nd  ed., 
trans,  by  G.  R.  Gillespie,  Edinburgh,  1892),  1152,  and  certain  French  cases  there 
cited;  PoUtis,  Nicholas,  E.,  Les  emprunts  d'etat  en  droit  international  Paris,  1894, 
280;  Milanowitsch,  cited  by  Freund,  Rechtsverhaltnisse,  etc.,  56. 

'  Freund,  Schutz  der  Glaubiger,  13. 

*  Zorn  in  Bankarchiv,  VI,  106,  cited  by  Freund,  Schutz  der  Glaubiger,  13. 


REMEDY    IN    MUNICIPAL    COURTS  305 

purely  an  international  contract,  for  this  could  be  concluded  only  by 
states  and  not  by  a  state  and  the  subjects  of  another  state.  The  con- 
tract is,  however,  by  its  nature  under  the  protection  of  international 
law  and  is  what  Bluntschli  called  a  quasi-international  contract.^ 
There  is  certainly  some  analogy  between  a  contract  (1)  between  Vene- 
zuela and  Germany  and  (2)  between  Venezuela  and  a  German  citizen, 
for  the  building  of  a  vessel  or  the  borrowing  of  money.  Neither  con- 
tracting party  in  these  cases  would  be  willing  to  submit  to  the  national 
municipal  law  of  the  other. 

§  118.  Remedy  in  Municipal  Couits. 

If  we  turn  to  the  jurisdiction  of  courts  and  the  means  of  enforcement 
of  the  contract,  the  international  nature  of  the  legal  relation  created 
will  become  apparent.  While  in  theory  the  jurisdiction  of  the  courts 
of  the  debtor  state  may  be  invoked,  several  contingencies  in  connection 
with  the  public  loan  must  always  be  borne  in  mind.  First,  the  debtor 
state  may  or  may  not  permit  itself  to  be  sued.^  While  most  states 
now  freely  subject  themselves  to  suit  in  cases  of  ordinary  contracts, 
many  states  still  decline  to  extend  this  right  so  far  as  the  pubUc  debt 
is  concerned.  IMany  states  of  the  United  States  have  repudiated  their 
debts  and  have  declined  to  permit  themselves  to  be  sued  on  them.^ 
Again,  as  the  public  loan  is  created  by  legislation,  an  act  of  sovereignty, 
so  it  may  be  suspended,  "reduced  or  even  repudiated  by  a  similar  act 

1  Bluntschli,  Das  moderne  Volkerrecht  der  civilisirten  Staaten,  Nordlingen,  1878, 
3rd  ed.,  §§  442,  433  (b);  Pflug,  op.  dt.,  40-41. 

The  arguxnent  against  the  international  nature  of  the  contract  of  public  loan,  that 
individuals  cannot  derive  rights  from  international  agreements,  as  they  are  not  sub- 
jects of  international  law,  has  been  greatly  weakened  by  the  Hague  Convention  for 
the  estabhshment  of  an  international  prize  court,  and  the  growing  opinion,  shared  by 
authorities  Uke  Westlake  and  Bonfils,  that  individuals  may  derive  subjective  rights 
from  international  agreements.  See  also  art.  2  of  the  Convention  estabhshing  the 
Central  American  Court  of  Justice.    See  supra,  §  9. 

« Twycross  v.  Dreyfus,  36  Law  Times  Rep.  (N.  S.)  (July  21,  1877),  752,  755.  See 
also  MouUn,  La  doctrine  de  Drago,  Paris,  1908,  86  et  seq. 

'  Scott,  WilUam  A.,  The  repudiation  of  state  debts,  New  York,  1893,  particularly 
Chap.  I,  in  which  the  constitutional  and  legal  aspects,  with  the  decisions  of  the  Su- 
preme Court  and  state  courts  are  lucidly  presented.  The  United  States  has  considered 
^tsell  not  responsible  for  the  det'ts  of  the  repudiating  states,  and  has  therefore  declined 
the  proffer  of  foreign  governments  to  arbitrate  the  claims  of  their  nationals,  holders  of 
the  repudiated  bonds  of  these  states. 


306  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

of  sovereignty,  by  which  the  national  courts  are  bound.  The  creditor, 
therefore,  is  juridically  opposed  to  a  sovereign  who  may  with  perfect 
legality,  by  an  act  of  sovereignty,  deprive  him  of  his  substantive  right 
and  of  his  remedy.  In  other  words,  the  state  in  the  exercise  of  its  sov- 
ereign powers  may  regulate  the  execution  of  its  contract  of  loan  in 
any  manner  conformable  with  its  public  interest.^  Again,  the  im- 
probability in  many  states  of  securing  an  impartial  judicial  determina- 
tion by  national  courts  in  cases  of  this  kind  makes  the  creditor's  position 
precarious.  To  sue  the  debtor  state  on  a  public  loan,  therefore,  is 
practically  useless.  There  are  some  states  whose  national  courts  might 
grant  a  crechtor  relief.  These  are  the  states  that  are  never  sued  on 
their  national  debts. 

To  sue  the  debtor  state  before  the  courts  of  the  creditor  is  still  less 
practicable.  As  a  general  rule  municipal  courts  decline  to  take  juris- 
diction over  foreign  states  as  defendants.^    The  exception  of  voluntary 

1  Lewandowski,  Maurice,  De  la  protection  des  capitaux  empruntes  en  France  par 
les  Etats  etrangers,  Paris,  1896,  24  et  seq.  While  apparently  accepted  as  a  principle, 
the  theory  is  by  no  means  undisputed  that  a  state  contracts  a  public  loan  in  its  char- 
acter as  a  sovereign,  jure  imperii,  and  is  not  bound  contractually  to  its  creditors.  See 
Moulin,  H.  A.,  La  doctrine  de  Drago,  Paris,  1908,  76  et  seq.;  Freund,  Rechtsver- 
haltnisse,  etc.,  59-61;  speech  of  M.  Ruy  Barbosa  (July  23,  1907)  at  the  Hague  Con- 
ference of  1907,  Actes  et  Discours  de  M.  Ruy  Barbosa,  60  et  seq.;  see  also  the  recent 
case  of  De  Andrade  v.  the  government  of  Brazil,  reported  in  40  Clunet  (1913),  237. 

2  Bynkershoek  is  the  father  of  this  theory. 

Loening,  E.,  Die  Gerichtsbarkeit  iiber  fremde  Staaten  u  Souverane,  Halle,  1903 
is  one  of  the  leading  works  on  the  subject.  The  opinions  of  courts  are  discussed, 
p.  23  et  seq.;  the  opinions  of  writers,  p.  55  et  seq.;  Christian  Meurer,  Klagen  von 
Privatpersonen  gegen  auswartige  Staaten,  8  Ztschr.  f.  Volkerrecht  (1914),  1-47,  and 
supra,  §  72.  See  also  Brie,  Fischer  &  Fleischmann,  ZwangsvoUstreckung  gegen 
fremde  Staaten  ii  Kompetenzkonfiikt,  Breslau,  1910,  containing  three  opinions 
rendered  at  the  request  of  Russia  in  the  case  of  Hellfeld  v.  Russia  on  the  question  of 
the  jurisdiction  of  German  courts  over  funds  of  Russia  in  Germany  and  the  possibility 
of  execution  against  them.  The  translation  of  the  decision  of  the  German  court  for 
the  determination  of  jurisdictional  conflicts  in  the  now  famous  HeUfeld  case  may  be 
found  in  5  A.  J.  I.  L.  (1911),  490-519. 

See  on  the  whole  subject  an  able  article  by  Droop  in  26  Gruchot's  Beitrage  zur 
Erlautcrung  des  deutschen  Rechts,  289-316,  in  which  the  decisions  of  courts  are 
carefully  reviewed.  Some  writers  have  made  a  distinction  as  to  jurisdiction  over 
foreign  states,  depending  upon  whether  the  transaction  in  question  involved  the  de- 
fendant state  in  its  capacity  as  a  sovereign  (jure  imperii)  or  as  a  fiscus  (jure  gestionis), 
granting  immunity  from  jurisdiction  in  the  former  case,  but  asserting  it  in  the  latter. 
The  most  noteworthy  of  these  writers  are  Laurent,  Droit  civil  international,  Paris, 


REMEDY    IN   MUNICIPAL   COURTS  307 

submission  and  questions  concerning  real  estate  are  hardly  of  practical 
significance  for  the  present  case. 

The  French  courts  take  the  firm  position  that  bondholders  of  the 
debt  of  a  foreign  state  cannot  sue  before  the  French  courts.^  The 
English  courts  have  usually  declined  to  exercise  jurisdiction  over  foreign 
states,  and  in  the  case  of  bondholders  of  foreign  debts  have  unequiv- 
ocally declared  themselves  jurisdictionally  incompetent.-  This  is  the 
rule  of  the  German  and  Austrian  courts  ^  and  has  been  the  uniform 
rule  in  courts  of  the  United  States."*  In  Belgium  and  Italy  the  courts 
seem  to  have  adopted  the  distinction  of  administrative  law  l^etween 
transactions  of  the  state  undertaken  jure  imperii  and  jtire  gestionis, 
and  to  have  exercised  jurisdiction  in  the  latter  case.^ 

If  there  were  still  any  doubt  as  to  the  impracticability  of  relief  by 
suit  against  a  foreign  government  in  municipal  courts,  it  would  be  dis- 
pelled by  the  certainty  that  execution  of  the  judgment,  even  if  obtain- 
able, is  practically  impossible.  No  legal  process  lies  agamst  the  property 
of  a  foreign  state,  and  even  the  jurisdictional  distinction  made  by  some 
courts  between  acts  jure  imperii  and  jure  gestionis  is  disregarded  in 
the  matter  of  execution.  The  exception  of  actions  involving  real  estate 
does  not  concern  us  here.  Even  attachment  and  garnishment  pro- 
ceedings against  the  movable  property  of  foreign  sovereigns  are  almost 
uniformly  dismissed.^ 

1880,  III,  42-103,  and  von  Bar,  op.  cit.,  1101  et  seq.  They  have  been  followed  by  a 
number  of  courts,  notably  those  of  Belgium  and  Italy.     Supra,  p.  176. 

1  See  the  cases  cited  in  Weiss,  A.,  Traite  de  droit  international  prive,  V,  94;  Loening, 
op.  cit.,  45. 

2  Westlake,  J.,  A  treatise  on  private  international  law,  London,  1905,  4th  ed., 
§§  190,  192  and  cases  there  cited.  See  particularly  Twycross  v.  Drej^fus  (1877),  36 
Law  Times  Rep.  (N,  S.)  755,  757,  decision  of  Jessel,  M.  R. 

'  Citations  of  cases  in  Brie,  op.  cit.,  and  Loening,  op.  cit.,  23  et  seq. 

*  Moore,  J.  B.,  in  his  American  notes  to  Dicey,  A.  V.,  A  digest  of  the  laws  of  Eng- 
land with  reference  to  the  conflict  of  laws,  London,  1896,  p.  229.  See  leading  case 
of  Schooner  Exchange  v.  McFaddon  (1812),  7  Cranch,  116;  30  Cyc.  104,  and  cases 
there  cited. 

*  Cases  cited  in  Loening,  op.  cit.,  52-54. 

'  Brie,  op.  cit.,  45  et  seq.;  Loening,  op.  cit.,  139  et  seq.  See  the  cases  of  von  Hellfeld 
V.  Russia,  supra;  De  Reilhac,  Trib.  civil  de  la  Seine,  June  12,  1895,  40  Clunet  (1913), 
907,  and  Mason  v.  Intercolonial  Railway  of  Canada  (1908),  197  Mass.  349.  See 
article  by  Nathan  Wolfman,  "Sovereigns  as  defendants,"  in  4  A.  J.  I.  L,  (1910), 


308  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

It  is  thus  apparent  that  national  municipal  courts,  either  of  the 
debtor  state  or  of  the  country  of  the  creditor,  are  unable  to  secure  the  un- 
paid creditor  any  remedy.  He  is  not  left  helpless,  however.  The  sanc- 
tion for  a  violation  of  his  rights  is  found  in  international  law  and  practice, 
in  that  states  have  frequently  interfered  in  behalf  of  their  creditor  sub- 
jects to  secure  the  payment  of  unfulfilled  national  obligations  of  foreign 
states.  Before  examining  the  legitimacy  of  diplomatic  interposition 
and  intervention  for  such  unpaid  creditors,  let  us  inquire  into  the  nature 
of  the  transaction  by  which  a  citizen  becomes  a  holder  of  a  share  in 
the  pubUc  debt  of  a  foreign  nation. 

§  119.  International  Remedies.    The  Drago  Doctrine. 

It  has  already  been  observed  that  the  emission  of  a  public  loan  takes 
place  by  legislative  act.  The  individual  abroad  may  obtain  the  bond 
either  through  a  direct  transaction  with  the  government  or  through  a 
banker  who  has  underwritten  the  loan.  As  a  general  rule,  however, 
the  bonds  are  purchased  in  the  open  market  as  industrial  securities 
would  be,  without  any  direct  relation  with  the  debtor  government. 
Being  payable  to  bearer,  they  pass  from  hand  to  hand,  from  national 
to  national,  by  mere  delivery. 

Again,  the  price  paid  takes  into  account  the  value  of  the  security, 
both  intrinsically  and  as  an  investment.  Thus  the  solvability  of  the 
government  bears  a  direct  relation  to  the  price  of  its  bonds.  Weak 
and  unstable  governments  must  sell  below  par  and  pay  high  rates  of 
interest.  The  original  capitalist  takes  advantage  of  the  necessities  of 
the  borrowuig  state  and  exacts  discounts  and  interest  accordingly, 
and  subsequent  dealers  in  the  bonds  know  the  conditions  equally  well. 
The  legal  fact  that  the  emission  was  an  act  of  sovereignty,  that  the 
debt  may  be  repudiated  or  reduced  by  a  similar  act,  that  the  usual  civil 
remedies  are  barred,  and  that  the  state  is  the  sole  judge  of  its  ability 
to  pay,  are  known  to  all  parties  to  the  transaction.  The  investor  there- 
fore buys  with  full  notice  and  assumption  of  the  risks,  and  has  weighed 
the  probabilities  of  large  profits  against  the  danger  of  loss. 

It  is  for  these  reasons  that  it  seems  unfair,  both  to  the  debtor  state 

373-383,  in  which  a  departure  from  the  general  rule  is  urged  in  favor  of  jurisdiction 
over  property  engaged  in  private  or  commercial  undertakings. 


INTERNATIONAL    REMEDIES.      THE   DRAGO    DOCTRINE  309 

and  to  the  fellow  nationals  of  the  creditors  (who  may  indeed  change 
from  day  to  day),  that  the  government  of  the  creditor  should  make 
the  breach  of  such  a  contractual  obligation  to  a  citizen  who  accidentally 
holds  a  foreign  pubUc  bond  a  cause  for  armed  international  action  in- 
volving the  whole  nation  in  the  burden,  and  making  the  government  in 
effect  the  underwriter  and  guarantor  of  his  investment  in  the  securities 
of  a  foreign  government. 

This  is  the  principal  argument  of  the  Drago  Doctrine,  first  advanced 
in  the  celebrated  note  of  December  29,  1902,  from  Dr.  Luis  Drago, 
Minister  of  Foreign  Affairs  of  Argentine,  to  the  Argentine  Minister  at 
Washington,  and  by  him  submitted  to  the  Department  of  State,  on 
the  occasion  of  the  joint  intervention  of  Great  Britain,  Italy  and  Ger- 
many against  Venezuela.  The  argument  led  up  to  the  recommenda- 
tion of  proposed  policy,  intended  to  be  a  corollary  to  the  Monroe  Doc- 
trine, that  "the  pubUc  debt  [of  an  American  state]  cannot  occasion 
armed  intervention,  nor  even  the  actual  occupation  of  the  territory  of 
American  nations  by  a  European  power.  ^ 

It  may  be  noted  that  Drago  protests  only  against  the  use  of  armed 
force  in  the  collection  of  public  debts  and  not  directly  against  diplo- 
matic interposition.  Most  of  the  writers  who  have  discussed  the  ques- 
tion have  failed  to  note  this  distinction,  possibly  because  a  denial  of 
forcible  measures  deprives  interposition  of  its  most  effective  sanction. 

*  The  text  of  the  Drago  note  will  be  found  in  Foreign  Relations  1903,  1-5.  Dr. 
Drago  has  written  the  following  monographs  on  the  doctrine  which  has  been  named 
after  him:  Cobro  coercitivo  de  deudas  publicas,  Buenos  Aires,  1906;  Les  emprunts 
d'Etat  et  leurs  rapports  avec  la  politique  Internationale,  14  R.  G.  D.  I.  P.  251,  trans- 
lated practically  in  full  in  his  article  "State  loans  in  their  relation  to  international 
policy,"  in  1  A.  J.  I.  L.  (1907),  692-726.  Among  the  best  literatm-e  in  English  are 
two  thoughtful  articles  by  George  Winfield  Scott,  "International  law  and  the  Drago 
doctrine"  in  North  American  Review,  Oct.,  1906,  602-610,  and  "Hague  convention 
restricting  the  use  of  force  to  recover  contract  claims"  in  2  A.  J.  I.  L.  (1908),  78-94; 
an  article  by  Amos  S.  Hershey,  The  Calvo  and  Drago  doctrines,  in  1  A.  J.  I.  L.  (1907), 
26-45;  and  Chapter  VIII,  vol.  1,  pp.  386-422,  of  James  Brown  Scott's  The  Hague 
Peace  conferences  of  1899  and  1907,  Baltimore,  1909.  One  of  the  best  books  is 
Moulin's  La  doctrine  de  Drago,  Paris,  1908,  and  a  useful  collection  of  documents  is 
to  be  found  in  S.  Perez  Triana,  La  doctrina  Drago,  Londres,  1908.  Alvarez  in  3 
A.  J.  I.  L.  (1909),  335  contests  Moulin's  view  that  the  Drago  doctrine  is  a  necessary 
complement  of  the  Monroe  doctrine.  Further  references  to  foreign  literature  may  be 
found  in  Bonfils,  Manuel  (6th  ed.,  1912),  186,  n.  4.  See  also  a  recent  work  by  Vivot, 
A.  N.,  La  doctrina  Drago,  Buenos  Aires,  1911. 


310  THE  DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

They  therefore  consider  the  protest  against  the  sanction  as  directed 
against  the  whole  remedy,  although  even  without  the  potential  use  of 
force  it  still  has  some  room  for  application.  In  expressly  stating  that 
lie  did  not  mtend  to  make  his  "doctrine"  a  defense  "for  bad  faith, 
disorder,  and  deliberate  and  voluntary  insolvency,"  Dr.  Drago  has, 
it  is  believed,  set  the  proper  bounds  to  his  principle,  although,  as  will 
be  pointed  out,  the  creditor  state  is  still  (except  as  restrained  by  the 
Porter  proposition)  left  the  sole  judge  of  the  existence  of  these  limiting 
conditions. 

§  120.  Diplomatic  Interposition  and  Intervention.    Opinions  of  Pub- 
licists. 

Before  proceeding  further,  it  may  be  appropriate  to  discuss  briefly 
the  opinions  of  pubhcists  and  the  practice  of  nations  in  the  matter  of 
intervention  to  collect  public  debts,  by  which  is  meant  diplomatic 
interposition  followed  by  force.  Westlake,  as  has  been  observed 
{supra,  p.  283),  has  properly  recognized  the  distinction  in  substance  and 
in  remedial  process  between  contracts  made  with  the  state  in  its  charac- 
ter as  a  fiscus  or  business  administrator  and  those  arising  out  of  sub- 
scription to  or  transfer  of  a  public  bond.  He  regards  honest  inability 
to  pay  as  a  title  to  consideration,  and  unless  the  defaulting  govern- 
ment presumes  to  treat  its  internal  and  external  debts  on  terms  of  in- 
equality unfavorable  to  the  latter,  he  thinks  "the  assistance  of  their 
state  ought  not  to  be  granted  to  the  bondholders  of  public  loans." 

Some  of  the  earlier  writers,  prominent  among  them  Grotius  and 
Vattel,  admitted  the  legitimacy  of  reprisals  against  a  sovereign  who 
refused  to  pay  a  lawful  debt  (supra,  p.  286).  Inability  and  refusal  to 
pay  are  not,  however,  identical.  Phillimore  and  Hall,  supporting  the 
views  of  the  British  government,  contend  that  a  debt  contracted  by  a 
foreign  government  toward  a  citizen  constitutes  an  obligation  of  which 
the  country  of  the  lender  has  a  right  to  require  and  enforce  the  fulfill- 
ment. ^  Yet  Phillimore  approves,  as  he  says,  the  proposition  of  Martens 
that,  in  the  absence  of  flagrant  misconduct,  the  foreigner  can  only 

'  Phillimore,  3rd  ed.,  II,  ch.  Ill,  8  et  seq.;  Hall,  6th  ed.,  275-276.  See  also  Pomeroy, 
Int.  law  (Woolsey's  ed.),  Boston,  1886,  §§  213,  214,  and  Lorimer,  Institutes,  Edin- 
burgh, 1883,  I,  447-448,  who  would  hold  a  borrowing  nation  at  least  to  good 
faith. 


DIPLOMATIC    INTERPOSITION   AND    INTERVENTION  311 

claim  to  be  put  on  the  same  footing  as  the  native  creditor  of  the  state."  ^ 
Rivier,  one  of  the  foremost  authorities,  has  in  this  respect  asserted  a 
far-reaching  right  of  intervention  under  circumstances  far  more  un- 
reasonable than  those  admitted  by  other  publicists.  Unless  it  may  be 
assumed  that  the  words  italicized  below  presuppose  fraud  and  bad  faith, 
his  doctrine  will  hardly  find  general  support,  though  it  must  be  admitted 
that  the  weaker  states  have  at  times  found  themselves  intervened 
against  under  circumstances  no  harsher  than  those  mentioned  by  Rivier: 

"The  fortune  of  individuals,  subjects  of  the  state,  forms  an  element 
of  the  riches  and  prosperity  of  the  state  itself.  It  has  an  interest  in  the 
maintenance  and  increase  of  that  fortune.  If  it  is  compromised  by  the 
act  of  a  foreign  state  which  administers  its  finances  badly,  which  betrays 
the  confidence  individuals  placed  in  it  when  they  subscribed  to  loans  on  con- 
ditions that  are  not  observed,  and  lohich  violates  its  engagements  in  regard 
to  them,  the  state  to  which  the  injured  individuals  belong  is  evidentlj^ 
authorized  to  take  their  interests  in  hand  in  any  manner  which  it  shall 
deem  suitable ;  it  may  proceed  either  by  diplomacy  or  by  reprisals.  .  .  . 
Individuals  have  not,  as  a  general  rule,  the  right  to  require  of  the  state 
that  it  shall  thus  take  their  cause  in  hand.  The  state  may  refuse  to 
act  in  their  favor  for  reasons  of  which  it  is  the  sole  judge;  but  if  it  acts, 
it  only  exercises  its  right.  It  may  see  to  it,  perchance,  according  to  the 
circumstances,  that  its  subjects  are  better  treated  than  those  of  other 
states,  or  than  those  of  the  insolvent  state.  This  is,  from  the  legal  point 
of  view,  a  matter  of  absolute  indifference."  2 

G.  F.  de  Martens  sanctions  intervention  in  case  of  "violent  financial 
operations"  of  the  debtor  state  depriving  creditors  of  their  loans,  but  he 
adds  that  foreign  creditors  cannot  demand  better  treatment  than 
nationals.^     Although    cited  by   PhilUmore    as   an   advocate  of   in- 

1  Phillimore,  op.  cit.,  II,  14. 

2  Rivier,  Alphonse,  Principes  du  droit  des  gens,  Paris,  1896,  I,  272. 

'  This  was  in  effect  the  decision  of  the  Hague  Tribunal  in  the  claim  of  Canevaro 
(Italy)  V.  Peru,  April  25,  1910,  6  A.  J.  I.  L.  (1912),  746,  based  on  the  fact  that  certain 
bonds  of  the  internal  debt  of  Peru,  subsequently  reduced  in  value  by  the  refunding  of 
that  debt  into  consolidated  bonds,  had  by  assignment  passed  into  the  hands  of  Italian 
subjects,  who  had  sustained  injury  by  the  reduction  of  the  debt.  Although  Italy 
cited  numerous  authorities  in  support  of  its  argument  that  as  to  aliens  a  state  incurs 
international  responsibility  by  the  reduction  of  its  debt,  the  Tribunal  declined  to  view 
the  refunding  as  the  reduction  of  a  foreign  debt,  but  considered  the  transfer  of  the 
bonds  of  an  internal  debt  from  nationals  to  aliens  as  not  conferring  greater  rights  upon 
aliens  than  nationals  possessed.  See  an  illuminating  article  by  Ch.  de  Boeck,  dis- 
cussing the  Peruvian  and  Italian  contentions,  with  citations  of  authorities,  in  20 
R.  G.  D.  I.  P.  (1913),  355  et  seq.,  365,  369. 


312  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

tervention,  opponents  may  also  find  support  in  his  ambiguous  doc 
trines,^ 

The  majority  of  writers  consider  armed  intervention  for  the  mere 
non-payment  of  public  debts  an  unjustifiable  procedure,  upon  reasons 
similar  to  those  advanced  by  Dr.  Drago,  namely:  that  hazardous 
loans  should  be  discouraged;  that  those  making  them  have  full  notice 
of  the  risks;  that  foreigners  cannot  expect  to  be  preferred  to  native 
creditors;  that  force  is  never  resorted  to  except  against  weak  states 
and  is  often  a  pretext  for  aggression  or  conquest;  and,  finally,  that  the 
loss  of  credit  and  standing  incurred  by  the  state  is  an  ample  and  ef- 
fective penalty  for  the  failure  to  fulfill  its  obligations.^  The  objections 
of  writers,  however,  are  directed  not  to  diplomatic  interposition,  but 
rather  to  an  excess  of  interposition  in  the  use  of  armed  force  to  collect 
unpaid  public  loans. 

The  preponderance  of  authority,  however,  favors  the  view  that  under 
certain  circumstances  intervention  to  secure  the  payment  of  public  loans 
is  legitimate.  Authorities  differ  merely  as  to  the  nature  of  the  circum- 
stances. In  general,  it  may  be  said  that  intervention  is  not  warranted  in 
the  case  of  an  honest  inability  of  a  state  to  pay  its  debts,  but  only  when, 
the  means  being  at  hand,  the  debtor  state  willfully  refuses  to  pay;  or  fur- 
ther, when  foreign  creditors  are  illegally  treated,  especially  if  they  are 
discriminated  against  in  favor  of  national  creditors,  or  if  certain  cate- 
gories of  creditors  are  preferred  to  others;  or  when  special  funds  as- 
signed as  security  to  the  payment  of  certain  debts  are  diverted  or  sup- 
pressed;— in  short,  when  bad  faith  may  be  considered  the  moving  cause 

'  G.  F.  de  Martens,  Precis  du  droit  des  gens,  Paris,  1864,  I,  298,  §  110.  See  also 
Phillimore,  op.  cit.,  14,  and  Pradier-Fodere,  Traite,  I,  §  405,  p.  623,  note. 

*  These  authorities  are  enumerated  and  citations  to  their  works  given  in  the  second 
part  of  footnote  34  of  Hershej''s  article  in  1  A.  J,  I.  L.  (1907),  37;  in  the  work  of 
Wuarin,  op.  cit.,  155-159,  and  in  the  address  of  Gen.  Horace  Porter  before  the  Second 
Hague  Conference  on  July  16,  1907,  i)resenting  the  American  proposition  for  the 
limitation  of  force  in  the  collection  of  contractual  debts.  La  deuxieme  Conference 
internationale  dc  la  Paix,  II,  229-233.  Also  printed  in  English  (Hague,  1907).  The 
principal  publicists  who  oppose  what  may  be  called  financial  intervention  are  F.  de 
Martens,  Wcstlake,  Holland,  Bonfils,  Calvo,  Pradier-Fodere,  Rolin-JacquemynSj 
Despagnet,  von  Bar,  Liszt,  Geffcken,  Kebedgy,  Nys,  Merignhac,  I'^eraud-Giraud, 
Weiss,  Olivecrona  and  Floecker.  Gen.  Porter  also  cited  Rivier,  but  this  must  have 
been  an  oversight.  See  also  Collas,  Der  Staatsbankerott  und  seine  Abwicklung, 
Stuttgart,  1904,  51,  and  Freund,  Rechtsverhaltnisse,  etc.,  271. 


PRACTICE   OF  NATIONS  313 

of  the  non-payment.  In  the  present  condition  of  international  law, 
in  which  states,  large  and  small,  have  no  common  superior  to  control 
or  check  them,  each  state  has  the  legal  right  of  decidmg  for  itself  whether 
the  conditions  warranting  intervention  exist.  In  the  use  of  this  right, 
the  power  of  enforcing  its  demands  has  often  been  a  factor  more  con- 
trolling than  the  mere  legitimacy  or  fairness  of  its  action.^ 
i-  There  is,  in  fact,  no  definite  rule  as  to  diplomatic  intervention  in 
the  matter  of  unpaid  pubUc  loans,  except  in  so  far  as  the  convention 
of  the  Second  Hague  Conference  for  the  limitation  of  the  use  of  force 
in  the  collection  of  contractual  debts  will  operate  as  a  check  by  requir- 
ing under  certain  conditions  a  prelimmary  resort  to  arl^itration/ 

§  121.  Practice  of  Nations. 

The  European  powers  have  on  several  occasions  intervened  to  secure 
the  payment  of  public  loans  due  their  subjects.  Their  action  has  taken 
various  forms.  Sometimes  it  has  been  merely  the  use  of  good  offices 
and  an  approval  of  arrangements  for  financial  control  made  by  national 
bankers  or  associations  of  bondholders  with  the  debtor  state,  as  in 
the  case  of  Turkey  (1881)  and  Ser\'ia  (1904);  an  assumption  of  limited 
governmental  control,  as  in  the  case  of  the  United  States  in  the  Domini- 
can Republic  (1907);  or  jomt  intervention  of  several  powers  assuming 
financial  control  as  in  the  case  of  Tunis  (1868),  of  Greece  "  (1897),  and 

'  The  decision  of  the  Hague  Permanent  Court  of  Arbitration  in  the  Preferential 
Claims  case  of  Germany,  Great  Britain  and  Italy  against  Venezuela  has  been  con- 
sidered an  approval  of  the  use  of  force  in  the  collection  of  claims  based  on  contract 
or  public  debt.  While  it  is  true  that  the  use  of  force  appears  to  have  been  sanctioned 
by  the  tribunal  by  the  allowance  of  preferential  treatment  to  the  three  blockading 
powers,  it  is  certain  that  only  a  small  part  of  the  claims  pressed  arose  out  of  con- 
tractual debts.  The  primary  reason  of  the  blockade  was  the  stubborn  reiteration  by 
\'enezuela  of  the  exclusive  jurisdiction  of  its  national  courts  and  the  absolute  refusal 
to  arbitrate.  Castro's  arrogance  exhausted  the  patience  and  temper  of  the  powers. 
See  article  by  Basdevant,  Jules,  L'action  coercitive  Anglo-Germano-Italienne  centre 
le  Venezuela  (1902-1903),  11  R.  G.  D.  I.  P.  (1904),  363^58;  Hershey,  Amos  S.,  The 
Venezuelan  affair  in  the  light  of  international  law,  51  American  Law  Register,  249- 
267.  The  Hague  decision  is  criticised  by  Andr6  Mallarm^  in  an  article  L'arbitrage 
v6n^zu61ien  in  13  R.  G.  D.  I.  P.  (1906),  423-500.  For  the  correspondence  see  Asuntos 
Internacionales,  two  volumes  of  the  Yellow  Book  of  Venezuela  published  in  1903  and 
extracts  printed  in  the  Appendix  to  Ralston's  Report  of  the  Venezuelan  Arbitrations. 

^  Kebedgy,  Michel  S.,  Les  difficult^s  financieres  de  la  Grece  et  I'intervention  dea 


314  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS    ABROAD 

of  Egypt  (1880).^  This  is  intervention  in  the  true  sense,  in  that  it 
involves  an  administrative  control  over  a  certain  portion  of  national 
resources  and  revenues.  It  seems  to  be  more  proper  on  the  part  of  a 
state  or  states  guaranteeing  the  debt  of  some  weak  state  placed  under 
their  guardianship.  Both  this  form  of  action  and  the  collection  of 
loans  by  force  of  arms  without  complete  intervention,  as,  e.  g.,  the  joint 
operations  against  Mexico  in  1861  and  against  Venezuela  in  1902, 
have  invariably  been  carried  out  against  weak  states.  When  Spain, 
Italy,  Austria,  Hungary  and  various  states  of  the  United  States  at 
different  times  suspended  or  reduced  their  public  obligations  there 
was  no  intervention  on  the  part  of  the  powers  whose  subjects  had  shares 
in  the  unpaid  or  underpaid  loans.  This  is  at  least  cumulative  evidence 
in  establishing  that  intervention  or  the  use  of  arms  to  collect  public 
loans  is  a  question  of  power  and  politics  rather  than  a  rule  of  law. 

Notwithstanding  Great  Britain's  participation  in  the  operations 
against  Mexico  in  1861,  against  Egj-pt  in  1880,  and  against  Venezuela 
in  1902,  her  statesmen  have  always  asserted  it  to  be  England's  policy 
not  to  interpose  diplomatically  in  behalf  of  British  holders  of  bonds 
of  foreign  governments,  though  reserving  their  liberty  of  action.  The 
British  view  was  expressed  in  its  now  accepted  form  in  the  celebrated 
circular  sent  by  Lord  Palmerston  in  1848  to  the  British  representatives 
in  foreign  states.    He  then  declared : 

"It  is  therefore  simply  a  question  of  discretion  with  the  British  gov- 
ernment whether  this  matter  [the  non-payment  of  public  loans]  should 
or  should  not  be  taken  up  by  diplomatic  negotiation,  and  the  decision 
of  that  question  of  discretion  turns  entirely  upon  British  and  domestic 
considerations." 

6tats  Strangers,  1  R.  G.  D.  I.  P.  (1894),  261-271;  Imbert,  Henri  Marc,  Les  emprunts 
d'6tats  etrangers,  Paris,  1905,  gives  an  account  of  the  various  cases  of  intervention 
in  Turkey,  Egypt,  Portugal,  Greece,  Tunis  (pp.  60-99);  Kebedgy,  M.  S.,  De  la  pro- 
tection des  creanciers  d'un  Etat  etranger,  21  Clunet  (1894),  59-72,  504-519.  Set- 
also  Wuarin,  Freund  and  Politis,  op.  cit.,  and  Meili,  Fr.  Der  Staatsbankerott  und 
die  moderne  Rechtswissenschaft,  Berlin,  1895;  Waurin,  article  in  29  Clunet  (1902), 
25  et  seq.,  420-431. 

'  Kaufmann,  Wilhelm,  Dae  internationale  Recht  der  egyptischen  Staatschuld, 
Berlin,  1891.  See  also  article  by  same  author  in  22  R.  D.  I.  (1890),  556-586;  vol.  23, 
48-75,  144-175,  266-316.  A  bibliography  on  the  Egyptian  debt  will  be  found  in  30 
Clunet  (1903),  081-683. 


PRACTICE   OF   NATIONS  315 

Referring  to  the  economic  disapproval  of  British  investments  in 
foreign  loans  as  against  British  enterprises,  he  added  that  the  British 
government  has 

"hitherto  thought  it  the  best  policy  to  abstain  from  taking  up  as  inter- 
national questions  the  complaints  made  by  British  subjects  against  for- 
eign governments  which  have  failed  to  make  good  their  engagements 
in  regard  to  such  pecuniary  transactions.  .  .  ." 

"But,  nevertheless,  it  might  happen  that  the  loss  occasioned  to  British 
subjects  by  the  non-payment  of  interests  upon  loans  made  by  them  to 
foreign  governments  might  become  so  great  that  it  would  be  too  high 
a  price  for  the  nation  to  pay  for  such  a  warning  as  to  the  future,  and  in 
such  a  state  of  things  it  might  become  the  duty  of  the  British  govern- 
ment to  make  these  matters  the  subject  of  diplomatic  negotiations."  ' 

Palmerston's  instruction  has  occasionally  been  misinterpreted  by 
writers  who  use  his  note  in  support  of  an  argument  for  non-intervention. 
When  he  stated  that  interference  was  "for  the  British  government  en- 
tirely a  question  of  discretion,  and  by  no  means  a  question  of  interna- 
tional right,"  he  did  not  intend  to  cast  any  doubt  on  the  right  of  Great 
Britain  to  interfere  (as  some  writers  have  quoted  him),  but  he  meant 
that  there  was  no  question  about  the  right  to  interfere.  This  is  clearly 
shown  by  the  succeeding  sentence  of  the  note.- 

Subsequent  secretaries  for  foreign  affairs,  emphasizing  the  specula- 
tive character  of  the  transaction  of  subscription  to  a  foreign  loan,  have 
declined  to  do  more  than  exercise  their  good  offices  in  behalf  of  unpaid 
bondholders.  Great  Britain's  practice  of  non-interference  is  entirely 
a  matter  of  policy  and  is  not  to  be  construed  as  the  recognition  of  an 
international  legal  principle.^ 

^  Palmerston  s  circular  is  quoted  in  full  by  Phillimore,  op.  cif.,  II,  9-11,  and  by 
Hall,  276-277.  Other  secretaries  for  foreign  affairs  of  Great  Britain  have  expressed, 
in  language  even  more  unreserved  than  that  of  Palmerston,  the  poUcy  of  non- 
interference. See,  for  example,  Canning  and  Aberdeen  (28  St.  Pap.  961,  967,  969). 
Russell  (52  St.  Pap.  237-239),  Derby,  Granville  (quoted  by  Phillimore,  op.  cit.,  12- 
13),  and  Salisbury  (cited  by  Hall,  note,  p.  277).  Balfour,  when  Prime  Minister  in 
1902,  supported  this  view;  see  Scott's  Hague  Peace  Conferences,  I,  402. 

2  See,  for  example,  Gen.  Porter's  address  of  July  16,  1907,  printed  separately  and 
quoted  in  Scott's  Hague  Peace  Conferences,  I,  402. 

'The  recent  (1913)  threat  of  Great  Britain  to  dispatch  a  warship  to  Guatemala 
to  collect  the  unpaid  interest  and  capital  on  bonds  held  by  British  subjects  may  be 
charged  to  the  action  of  Guatemala  in  diverting  the  security  of  the  loan,  an  export 
tax  on  coffee,  to  other  purposes. 


316  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

The  practice  of  non-interference  of  the  United  States  on  the  other 
hand  has  been  not  only  a  matter  of  poUcy,  but  the  carrying  out  of  a 
fundamental  principle  that  the  diplomatic  interposition  of  the  United 
States  cannot  be  invoked  (within  the  recognized  limitations)  in  behalf 
of  contractual  claims.^  If  certain  revenue  or  security  has  been  set  aside 
for  the  repayment  of  a  loan,  it  seems  probable  that  the  United  States 
would,  following  the  practice  of  other  nations,  interpose  diplomatically 
to  prevent  any  diversion  of  the  security  or  the  pledged  revenue.^ 
Attorney-General  Gushing  in  the  course  of  an  elaborate  opinion  on  the 
Texas  bonds  question  declared  that 

"A  public  creditor,  like  a  private  creditor,  has  a  general  right  to  re- 
ceive payment  out  of  the  property,  income,  or  means  of  his  debtor.  A 
special  pledge  of  this  or  that  source  of  revenue,  of  this  or  that  direct 
tax,  when  made  by  a  government,  renders  such  source  of  revenue,  like 
a  mortgage  or  deed  of  trust  given  by  a  private  individual  to  his  creditor, 
a  specific  lien,  a  fixed  incumbrance,  which  the  government  ought  not, 
in  justice  to  the  creditor,  to  abolish,  lessen,  or  alienate  until  the  debt  has 
been  satisfied."  ^ 

In  the  case  of  certain  bonds  issued  by  Haiti  to  American  citizens 
for  work  and  materials  furnished.  Secretary  of  State  Sherman  protested 
against  a  proposed  law  of  Haiti  having  in  view  the  conversion  of  the 
bonds  at  a  rate  greatly  depreciatory  of  their  value.'*  There  would 
indeed  seem  to  be  some  difference  between  bonds  purchased  in  the  open 
market  as  an  investment  and  bonds  received  in  payment  for  services 
and  goods,  in  the  hands  of  the  original  parties. 

Where  the  loan  has  been  liquidated  and  a  new  agreement  for  pay- 
ment made,  the  origin  of  the  debt  seems  to  have  constituted  no  deterrent 
agamst  its  enforcement.  So  in  Mexico,  in  1861,  Lord  John  Russell 
withheld  recognition  of  the  Mexican  government  until  Mexico  had 
agreed  to  carry  out  an  arrangement  made  with  British  bondholders.^ 

'  Citations  noted  in  Moore  and  Wharton,  supra,  p.  288. 

^  Cases  cited,  supra.  See  also  opinion  of  Little,  commissioner,  in  Aspinwall  (U.  S.) 
V.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3641-3642. 

=  Opinion  of  Sept.  26,  1853,  6  Opin.  Atty.  Gen.  130,  143. 

*  Mr.  Sherman,  Sec'y  of  State,  to  Mr.  Powell,  Oct.  26,  1897,  Moore's  Dig.  VI,  729. 
In  Canevaro  (Italy)  v.  Peru,  April  25,  1910,  6  A.  J.  I.  L.  746,  the  internal  debt  of  Peru 
was  converted  at  a  reduced  rate. 

'  Lord  J.  Russell  to  Sir  C.  Wykc,  Mar.  30,  1861,  52  St.  Pap.  237,  239.    Some  of 


PRACTICE    OF    NATIONS  317 

Both  the  United  States  and  Great  Britain  have  authorized  their 
representatives  abroad  to  receive  payment  for  their  citizen  bondholders, 
as  a  matter  of  convenience  both  to  the  debtor  government  and  to  the 
citizen,^  and  where  the  bonds  of  one  foreign  government  have  been 
wholly  or  largely  held  by  the  citizens  of  another,  the  United  States  has, 
on  one  occasion  at  least,  sanctioned  the  endeavor  of  the  government 
of  the  creditors  to  effect  by  diplomatic  negotiation  an  adjustment  of 
their  claim." 

Dr.  Drago,  in  advancing  his  doctrine  as  a  corollary  to  the  Monroe 
Doctrine,  had  some  reason  to  expect  the  approval  of  the  United  States, 
not  only  because  of  its  interest  in  the  maintenance  of  the  Monroe 
Doctrine,  but  because  of  its  traditional  attitude  in  the  matter  of  con- 
tract claims.  Dr.  Drago  quoted  from  Monroe's  message  that  the 
United  States 

"could  not  view  any  interposition  for  the  purpose  of  oppressing  [the 
countries  of  the  American  continent],  or  controlling  in  any  other  manner 
their  destiny,  by  any  European  power,  in  any  other  light  than  as  the 
manifestation  of  an  unfriendly  spirit  toward  the  United  States."  ^ 

In  Secretary  of  State  Hay's  reply  to  the  Drago  note  (one  of  "cordial 
evasion,"  as  Dr.  Drago  himself  has  expressed  it),  Mr.  Hay  quoted 
from  President  Roosevelt's  message  of  1901  to  the  effect  that 

"we  do  not  guarantee  any  state  against  punishment  if  it  misconducts 

the  money  was  seized  by  Mexican  authorities  after  it  was  in  the  hands  of  the  bond- 
holders' agent.  This  raised  a  different  question,  and  of  course  justified  interposition. 
51  St.  Pap.  548. 

»  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Mr.  Wright,  Jan.  17,  1884,  Moore's  Dig. 
VI,  713;  Phillimore,  op.  cit.,  II,  13.  See  also  settlement  of  claim  of  McMaster  (Gt. 
Brit.)  V.  Colombia,  Jan.  27,  1882,  73  St.  Pap.  1349.  McMaster  had  to  prove  that  he 
purchased  the  16  bonds  in  question  before  the  issuance  of  a  certain  order  for  the 
suspension  of  payment  on  aU  bonds  of  this  issue.  Claimant  governments  will  usually 
examine  closely  into  the  bona  fides  of  the  transaction  by  which  their  citizens  became 
the  holders  of  the  bonds  of  foreign  governments,  to  establish  the  absence  of  specula- 
tive ventures,  and  the  existence  of  an  actual  loss.  The  face  value  of  the  bonds  is  not 
always  a  good  test  of  the  sum  parted  with  or  the  legitimate  loss  sustained. 

2  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Mr.  Wright,  Jan.  17,  1884,  Moore's  Dig, 
VI,  713.  He  stated,  however,  that  the  occasions  on  which  this  had  been  done  were 
not  common  enough  to  form  a  rule  of  action. 

^  President  Monroe's  Annual  Message,  Dec.  2,  1823,  Amer.  St.  Pap.,  For.  Rel.  V, 
246,  250,  quoted  in  Moore's  Dig.  VI,  401,  402;  Richardson's  Messages,  II,  209  et  seq. 


318  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

itself,  provided  that  punishment  does  not  take  the  form  of  the  acquisi- 
tion of  territory  by  any  non-American  power,"  ' 

but  added  an  unequivocal  approval  of  arbitration  of  claims  growing 
out  of  alleged  wrongs  to  individuals. 

§  122.  The  Porter  Proposition  at  The  Hague. 

Both  Mr.  Root,  as  Secretary  of  State,  and  President  Roosevelt, 
having  in  mind  the  difficulties  of  Venezuela  in  1903  and  those  of  the 
Dominican  RepubUc  in  1894  and  1904  in  endeavoring  to  ward  off 
foreign  intervention,  were  anxious  to  have  the  question  of  the  use  of 
force  in  the  collection  of  contractual  claims  settled  by  the  agreement 
of  states.  Mr.  Root  therefore  on  June  18,  1906,  instructed  the  dele- 
gates of  the  United  States  to  the  Third  American  Conference  of  American 
States  at  Rio  Janeiro  as  follows : 

"It  has  long  been  the  established  policy  of  the  United  States  not  to 
use  its  armed  forces  for  the  collection  of  ordinary  contract  debts  due  to 
its  citizens  by  other  governments." 

After  deprecating  its  injurious  effect  upon  the  welfare  of  weak  and 
disordered  states,  whose  development  ought  to  be  encouraged  in  the 
interests  of  civilization,  he  added: 

"It  is  doubtless  true  that  the  non-payment  of  public  debts  may 
be  accompanied  by  such  circumstances  of  fraud  and  wrong-doing  or 
violation  of  treaties  as  to  justify  the  use  of  force.  This  government  would 
be  glad  to  see  an  international  consideration  of  the  subject  which  shall 
discriminate  between  such  cases  and  the  simple  non-performance  of  a 
contract  with  a  private  person,  and  a  resolution  in  favor  of  reliance  upon 
peaceful  means  in  cases  of  the  latter  class."  ^ 

He  recommended,  however,  that  as  most  of  the  American  states 
were  still  debtors  and  would,  by  such  a  resolution,  resolve  how  their 
creditors  should  act,  it  would  be  more  fitting  that  they  should  request 
the  Hague  Conference,  where  both  creditors  and  debtors  would  be 
assembled,  to  consider  the  subject. 

The  Rio  Conference  made  such  a  request,  and  the  United  States 
delegation  at  The  Hague,  on  instructions  from  Mr.  Root,  as  Secretary 

«  Mr.  Hay,  Sec'y  of  State,  to  Sefior  Garcia  Merou,  Feb.  17,  1903,  For.  Rel.,  1903, 
5-6. 

*  Senate  Doc.  365,  59th  Cong.,  2nd  sesa.,  41-42. 


THE   PORTER   PROPOSITION  AT  THE   HAGUE  319 

of  State,  brought  forward  a  proposition  to  the  effect  that  the  use  of 
force  for  the  collection  of  contract  debts  is  not  permissible  until  after 
the  justice  and  amount  of  the  debt,  as  well  as  the  time  and  manner  of 
payment,  shall  have  been  determined  by  arbitration.^ 

Gen.  Horace  Porter  took  charge  of  this  proposition,  and  made  the 
principal  address  in  its  support.  After  several  amendments  to  his  orig- 
inal draft,  the  conference  by  a  vote  of  39  in  favor  and  5  abstentions 
(Belgium,  Roumania,  Sweden,  Switzerland  and  Venezuela)  adopted 
the  following  convention — a  few  states  making  special  reservations: 

"The  Contracting  Powers  agree  not  to  have  recourse  to  armed  force 
for  the  recovery  of  contract  debts  claimed  from  the  government  of  one 
country  by  the  government  of  another  country  as  being  due  to  its  nation- 
als. 

"This  undertaking  is,  however,  not  applicable  when  the  debtor  state 
refuses  or  neglects  to  reply  to  an  offer  of  arbitration,  or,  after  accepting 
the  offer,  prevents  any  compromis  from  being  agreed  on,  or,  after  the 
arbitration,  fails  to  submit  to  the  award." 

While  not  rejecting  completely  the  possibiUty  of  forcibly  collecting 
contract  debts,  the  convention  represents  a  considerable  step  in  ad- 
vance, inasmuch  as  it  makes  the  use  of  force  conditional  upon  (1)  a 
refusal  to  arbitrate;  (2)  making  a  formulation  of  an  agreement  impos- 
sible after  arbitration  is  accepted;  (3)  failure  to  carry  out  the  award. 
These  are  more  definite  and  more  appropriate  limitations  than  the 
vague  terms  "bad  faith,"  "deliberate  and  voluntary  insolvency,"  etc., 
which  we  may  infer  even  the  opponents  of  intervention  and  Dr.  Drago 
himself  would  consider  as  justifiable  causes  of  intervention. - 

A  few  countries  either  declined  to  subscribe  to  the  convention  or 

1  In  the  Russian  program  of  the  First  Peace  Conference  of  1899  regarding  inter- 
national arbitration  a  clause  had  been  included  providing  that  arbitration  shall  be 
obligatory  "in  the  case  of  differences  or  conflicts  regarding  pecuniary  damages  suf- 
fered by  a  state  or  its  citizens  in  consequence  of  illegal  or  negligent  action  on  the  part 
of  any  state  or  the  citizens  of  the  latter."  This  proposition  for  the  arbitration  of 
pecuniary  claims  was  for  various  reasons  dropped. 

^  A  good  account  of  the  prelii  inary  instructions  and  principal  speeches  and  pro- 
posals in  connection  with  this  convention  for  the  limitation  of  the  employment  of 
lorce,  with  appropriate  quotations,  may  be  found  in  J.  B.  Scott's  Hague  Peace  Con- 
ferences, I,  Chap.  VIII,  386-422.  See  also  article  by  G.  W.  Scott,  supra,  in  2  A.  J. 
I.  L.  (1908),  78-94.  The  convention  in  full  is  printed  in  Scott's  Hague  Peace  Con- 
ferences, II  (Documents),  357-361. 


320  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

in  adhering  registered  important  reservations.  Switzerland  and  Ven- 
ezuela declined  to  sign  the  convention  (although  the  latter  was  very- 
wining  to  accept  the  renunciation  of  force)  on  the  ground  that  it  ousted 
the  national  courts  of  jurisdiction.  One  can  understand  Switzerland's 
unwillingness  to  be  bound  to  arbitrate  a  question  in  which  its  courts, 
internationally  recognized  as  impartial,  have  jurisdiction.^  Venezuela's 
protest,  which  took  the  following  form — 

"recourse  to  arbitration  should  be  permitted  only  in  the  case  of  denial 
of  justice  after  the  judicial  remedies  of  the  debtor  state  had  been  ex- 
hausted"— 

is  to  be  regarded  as  traditional.  If  its  judicial  organization  is  as  in- 
dependent as  it  ought  to  be,  the  justification  for  the  protest  is  readily 
apparent.  Seven  other  Latin-American  republics,  by  way  of  reservation, 
joined  in  the  objection  of  Venezuela. 

The  principal  reservation  was  made  by  Dr.  Drago  himself,  on  the 
part  of  Argentine.  After  declaring  that  ordinary  contracts  should  be 
arbitrable  only  in  case  of  denial  of  justice  after  the  exhaustion  of  local 
remedies,  he  added: 

"Public  loans  with  bond  issues  constituting  the  national  debt  cannot 
in  any  case  give  rise  to  military  aggression  nor  to  the  occupation  of  the 
soil  of  American  states." 

In  this  reservation  Argentine  was  joined  by  Colombia,  Ecuador, 
Guatemala,  Nicaragua,  Paraguay,  Peru  and  Uruguay.^ 

Another  reservation  by  Peru,  in  which  Uruguay  joined,  sought  to 
protect  the  so-called  Calvo  clause  from  possible  infringement.  The 
reservation  reads: 

"That  the  principles  adopted  in  this  proposition  cannot  be  applied 
to  claims  or  differences  arising  from  contracts  between  the  government 
of  one  country  and  foreign  subjects,  when  it  has  been  expressly  stipu- 

'  In  theory  at  least  the  strong  and  well-organized  states  have  renounced  an  in- 
herent right.  Dr.  Heinrich  Pohl  in  the  Zeitschrift  fiir  Politik  (vol.  4,  134,  138)  criti- 
cizes Germany  for  having  ratified  the  Porter  Proposition  (Reichsgesetzblatt,  1910, 
59-81),  for  he  states  that  Germany  may  sometimes  be  a  defendant  state  and  will  be 
bound  by  the  agreement  to  arbitrate,  thus  ousting  its  courts  of  jurisdiction. 

2  See  table  of  reservations  in  J.  B.  Scott's  Hague  Peace  Conferences,  II,  532-534, 
and  article  by  G.  W.  Scott,  2  A.  J.  I.  L.  89.  See  also  3  Zeitschr.  fiir  Volkerr.  u  Bun- 
desstaatsrecht,  72,  73. 


RELATION  BETWEEN  PORTER  PROPOSITION  AND  DRAGO  DOCTRINE     321 

lated  that  the  claims  or  differences  must  be  submitted  to  the  judges  and 
tribunals  of  the  contracting  country." 

The  general  futility  of  this  clause  in  so  far  as  it  seeks  to  attain  the  ex- 
clusive jurisdiction  of  local  courts  and  the  avoidance  of  diplomatic 
interposition,  has  been  demonstrated  by  international  practice. 

One  possible  objection  to  the  Porter  proposition,  which  appears  to 
have  escaped  general  attention,  lies  in  the  fact  that  it  actually  sanctions 
the  use  of  armed  force  in  a  class  of  cases  in  which  the  United  States,  and, 
on  occasion,  other  powers,  have  declined,  as  a  matter  of  policy,  to  inter- 
vene diplomatically. 

§  123.  Relation  Between  Porter  Proposition  and  Drago  Doctrine. 

It  will  be  seen  that  this  Hague  convention  for  the  limitation  of  the 
use  of  force  in  the  collection  of  contractual  debts,  popularly  known  as 
the  Porter  proposition,  is  at  once  narrower  and  wider  in  scope  than  the 
Drago  doctrine.  It  is  narrower  inasmuch  as  it  recognizes  the  ultimate 
legality  of  the  use  of  force.  As  a  definite  check  upon  the  use  of  force 
in  first  instance,  and  an  important  extension  of  the  principle  of  inter- 
national arbitration,  it  is  to  be  welcomed,  for  pacific  blockades,  threats 
of  hostilities,  and  rumors  of  warlike  preparations,  have  a  most  dis- 
turbing effect  on  international  commerce,  and  as  General  Porter  showed, 
the  disposition  of  neutral  states  to  refuse  to  recognize  pacific  blockade 
leads  to  the  more  effective  blockade  of  actual  war,  and  as  Mr.  Roose- 
velt on  a  number  of  occasions  has  stated,  the  seizure  of  custom  houses 
easily  leads  to  a  more  permanent  occupation  of  territory. 

Moreover,  the  interruption  of  the  commerce  of  the  debtor  nation 
diminishes  its  means  and  opportunities  to  pay  the  very  debts  for  which 
the  hostilities  are  undertaken  and  acts  unfairly  toward  creditors  of 
other  nations.    Many  of  these  difficulties  will  now  be  avoided. 

The  Porter  proposition  is  wider  in  scope  than  the  Drago  doctrine  in 
that  its  provisions  apply  to  all  contractual  debts,  whereas  Dr.  Drago 
confined  his  policy  to  claims  arising  out  of  the  non-payment  of  public 
loans.  Nevertheless,  doubt  has  been  raised,  both  in  the  sub-committee 
of  the  Conference  and  since  then,  as  to  the  meaning  of  "contractual 
debts.  1 

^  A  full  discussion  of  these  doubts  and  possible  interpretations  is  contained  in 
Moulin,  op.  cit.,  308-320.    See  also  article  by  G.  W.  Scott,  2  A.  J.  I.  L.  90-93. 


322  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABR'^^^D 

Without  entering  into  the  various  interpretations  to  which  the  term 
is  subject,  it  seems  clear  that  it  does  include  public  loans. 

There  is  a  class  of  cases,  however,  of  the  "contractual"  nature  of 
which  there  may  be  some  doubt.  When  a  contract  has  been  concluded 
between  a  government  and  an  individual  for  the  carrying  on  of  some 
public  work,  it  has  happened  that  a  subsequent  act  of  the  legislature, 
acting  not  as  a  business  fiscus  but  as  a  sovereign,  diminishes  the  con- 
tractor's rights  under  the  contract.  National  courts,  as,  for  example, 
the  United  States  Court  of  Claims,  have  held  that  the  two  functions 
which  the  government  possesses  as  a  fiscus  and  as  a  sovereign  are  dis- 
tinct, and  that  the  United  States  when  sued  in  the  one  character  can- 
not be  made  liable  for  acts  done  in  the  other: 

"Whatever  acts  the  government  may  do,  be  they  legislative  or  exec- 
utive, so  long  as  they  be  public  and  general,  cannot  be  deemed  specially 
to  alter,  modify,  obstruct  or  violate  the  particular  contracts  into  which 
it  enters  with  private  persons."  ^ 

The  question  arises  whether  these  distinctions  of  national  law  which 
exclude  the  case  mentioned  from  the  category  of  contractual  debts 
will  be  maintained  by  the  international  forum  in  the  interpretation 
of  the  term  "contractual  debts."  It  has  been  observed  that  Foreign 
Offices  in  dealing  with  the  Latin-American  Republics  have  on  occasion 
considered  it  as  a  violation  of  the  contract,  and  an  arbitrary  measure, 
thus  to  reduce  the  contractor's  rights  by  a  subsequent  legislative  act." 
It  seems  reasonable  to  assume  that  this  will  be  the  interpretation  of 
the  term  "contractual  debt"  by  an  international  court. 

§  124.  Public  Bonds  Before  Arbitral  Tribunals. 

Bond  cases  have   come  before  international  tribunals  on   several 

'  Deming  v.  United  States,  1  Ct.  CI.  (1865),  190-191;  Jones  and  Brown  v.  United 
States,  1  Ct.  CI.  (1865),  384-399;  Wilson  v.  United  States,  11  Ct.  CI.  (1875),  513-522; 
28  Op.  Atty.  Gen.  123  (Wickersham),  holding  that  the  government  might  as  a  matter 
of  grace  and  equity,  reheve  the  contractor  from  unduly  harsh  burdens.  French  courts 
have  held  the  government  liable  for  breach  of  contract  by  an  act  of  legislation. 

^  If  the  act  of  legislation  is  general,  affecting  equally  all  similar  contracts  between 
private  individuals,  it  would  seem  that  the  U.  S.,  by  the  decisions  of  its  own  courts,  is 
constrained  to  decline  interposition  based  upon  alleged  violation  of  law,  but  that  it 
would  be  justified  in  exercising  good  offices  in  requesting  relief  for  its  citizen  from  uii' 
expected  burdens  cast  upon  him  by  legislation. 


PUBLIC    BONDS    BEFORE   ARBITRAL   TRIBUNALS  323 

occasions.  Very  little  light  is  thrown  upon  the  subject  by  the  results 
of  these  arbitrations,  except  as  by  their  dicta  the  commissions  express 
the  opinion  that  governments  have  the  right  to  press  the  claims  of 
bondholders  of  a  foreign  debt,  though  they  generally  admit  that  in 
practice  such  claims  are  not  diplomatically  presented.  As  a  general 
rule,  however,  jurisdiction  has  been  declined — usually  for  the  reason 
that  governments  are  not  in  the  habit  of  presenting  such  claims  dip- 
lomatically and  because  of  the  unwillingness  of  commissions  to  assume 
that  they  were  intended  to  exercise  jurisdiction  in  the  absence  of  ex- 
press words  in  the  protocol.^  It  has  been  so  held  even  where  the  protocol 
provided  for  the  settlement  of  "all  claims."  ^  The  Colombian  Bonds 
decision,  rendered  by  Sir  Frederick  Bruce,  Umpire,  was  severely  crit- 
icised by  Cormnissioner  Little  in  the  Aspinwall  case  before  the  United 
States- Venezuelan  commission  of  December  5, 1885.  He  held,  with  Com- 
missioner Findlay  (Andrade  dissenting),  that  the  inclusive  term  "all 
claims"  embraced  bond  claims.  This  case  constitutes  one  important  ex- 
ception, prior  to  the  Venezuelan  Arbitrations  of  1903,  to  the  general  rule 
that  jurisdiction  over  bond  claims  is  not  exercised  by  international  com- 
missions.^ 

1  Overdue  Mexican  coupons,  Du  Pont  de  Nemours  (U.  S.)  v.  Mexico,  July  4,  1868, 
Moore's  Arb.  3616.  Opinion  by  Wadsworth;  Zamacona  concurred.  See  dictum  of 
Thornton,  Umpire,  in  Widman  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3467. 

~  Colombian  Bond  cases,  Riggs,  Oliver,  Fisher  (U.  S.)  v.  Colombia,  Feb.  10,  1864, 
Moore's  Arb.  3612-3616.  In  the  case  of  Gibbes  before  the  1857  and  1864  U.  S.- 
Colombian commissions  (Moore's  Arb.  1398,  1410)  an  assigned  bond  was  the  subject- 
matter  of  the  claim;  the  jurisdictional  question  does  not  appear  to  have  been  raised. 

^  Venezuelan  Bond  cases,  Aspinwall,  Executor  of  G.  G.  Rowland  ct  al.  (U.  S.),  v. 
Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3616-3641.  This  claim  was  dismissed  by  the 
mixed  commission  tmder  the  convention  of  April  25,  1866.  The  findings  of  this  com- 
mission were  reopened  because  of  the  alleged  fraud  of  the  arbitrators.  Under  a  strict 
construction  of  the  protocol,  Bates,  Umpire,  dismissed  the  Texas  Bond  cases  before 
the  British-U.  S.  Commission  of  Feb.  8,  1853,  Moore's  Arb.  3594.  One  reason  was 
that  they  had  not  been  treated  by  Great  Britain  as  a  subject  for  diplomatic  interposi- 
tion. The  decision  is  criticised  by  Westlake,  I,  77-78,  citing  Dana  in  Dana's  Wheaton. 
§  30,  n.  18.  Jurisdiction  was  exercised  by  the  Mexican  commission  of  1868  over  a 
stolen  bond,  Keller  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3065,  on  the  ground 
of  fraudulent  destruction  of  specific  property  having  a  definite  value  and  certain  as- 
surances by  the  government.  See  also  Eldredge  (U.  S.)  v.  Peru,  Jan.  12,  1863,  Moore's 
Arb.  3462.  The  failure  to  fulfill  the  obligations  of  a  bond  issued  for  supplies  was  held 
not  an  "injury  to  property"  by  the  U.  S.-Mexican  Commission  of  1868  (Manasse 


324  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAJ) 

Before  the  Venezuelan  commissions,  sitting  at  Caracas,  four  bond 
claims  were  presented,  with  various  decisions.  In  the  case  of  the  Comp, 
Generale  des  Eaux  de  Caracas  (Belgium),^  Venezuelan  bonds  payable 
to  bearer  had  been  issued  to  the  corporation  for  certain  public  works. 
From  the  decision  it  would  seem  that  the  general  rule  of  nonenforce- 
ment  of  bond  claims  may  be  held  not  applicable  where  the  bonds  are 
issued  in  payment  of  property  rights  transferred  to  the  government. 
Although  many  of  the  stockholders  were  not  Belgians,  an  award  was 
made  with  the  peculiar  provision  that  the  money  should  be  deposited 
in  a  Belgian  bank  and  the  bonds  paid  on  being  turned  in.  The  produc- 
tion of  the  bonds  naturally  was  made  a  necessary  condition  for  the 
making  of  an  award,  so  where,  in  the  case  of  Ballistini  (France),-  the 
original  bonds  were  not  produced,  the  claim  was  dismissed,  Paul, 
Conunissioner,  in  a  dictum  giving  expression  to  the  usual  rule  of  the 
non-enforcement  of  bond  claims  before  international  commissions. 
In  the  case  of  Boccardo  (Italy), ^  where  national  bonds  were  delivered 
to  claimant  in  payment  for  articles  furnished  and  were  never  trans- 
ferred by  him,  judgment  was  rendered  on  the  authority  of  the  Aspin- 
wall  case  before  the  Venezuelan  Commission  of  1885.  The  fourth 
case,  Jarvis  (U.  S.),''  was  dismissed  because  the  service  and  the  supplies 
for  which  the  bonds  were  issued  (by  a  temporary  dictator  of  Vene- 
zuela) were  furnished  to  an  unsuccessful  revolution,  which  had  not 
been  recognized  by  the  government  of  the  United  States,  and  hence 
presumably  they  were  not  valid  obligations  of  Venezuela. 

In  the  recent  case  of  Canevaro  (Italy)  against  Peru,'^  Italy  based 
its  claim  upon  the  fact  that  Peru  had  refunded  its  internal  debt  by 
issuing  consolidated  bonds  at  a  greatly  reduced  rate,  and  that  bonds 
of  this  internal   debt   held   by   Italian  subjects  by  assignment  were 

case,  IMoore's  Arb.  3463),  although  the  failui'e  to  pay  for  supphes  furnished  under 
contract  had  been  so  construed. 

'  Conip.  Generale  des  Eaux  de  Caracas  (Belgium)  v.  Venezuela,  March  7,  1903, 
Ralston,  271-290. 

2  Ballistini  (France)  v.  Venezuela,  Feb.  27,  1903,  Ralston,  503-506. 

'  Boccardo  (Italy)  v.  Venezuela,  Feb.  13,  1903,  cited  in  note  to  Ralston,  505  (not 
reported).  See,  however,  the  brief  statement  given  by  Mr.  Ralston  in  hia  address 
before  the  International  Law  Association,  24th  Rep.  193-194. 

Uarvis  (U.  8.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  145-151. 

'Canevaro  (Italy)  v.  Peru,  April  25,  1910,  0  A.  J.  I.  L.  (1912),  746,  752. 


THE    UNITED    STATES   AND    CENTRAL-AMERICAN    LOANS  325 

thereby  unlawfully  reduced  in  value.  The  Hague  Tribunal  supported 
the  contention  of  Peru  that  the  internal  debt  did  not  become  external 
by  its  assignment  to  ahens,  and  that  alien  transferee-holders  were  in 
no  better  position  than  national  holders  of  the  bonds.  Various  claims 
of  French  and  other  citizens  and  corporations  agamst  Chile,  based 
upon  bonded  indebtedness  guaranteed  upon  guano  deposits  ceded  by 
Peru,  were  submitted  to  the  tribunal  sitting  at  Lausanne,  the  awards 
upon  which  were  rendered  July  5,  1901.^  By  the  protocol  of  Feb.  2,  1914 
between  France  and  Peru,  it  was  agreed  to  submit  to  arbitration  the 
claim  of  the  widow  Philon-Bemal  and  other  bondholders  of  the  loan 
of  1870.- 

§  125.  The  United  States  and  Central-American  Loans. 

The  United  States,  m  its  endeavor  to  be  consistent  with  the  mainte- 
nance of  the  Monroe  Doctrine  and  with  the  declaration  of  President 
Roosevelt  that  that  doctrine  could  not  be  used  by  any  nation  of  this 
continent  to  shield  it  from  the  consequences  of  its  own  misdeeds,  has 
at  times  been  placed  in  the  most  delicate  position  when  foreign  nations 
have  attempted  to  seek  redress  for  the  alleged  violation  of  international 
rights.  So,  in  the  settlement  of  numerous  chfficulties  between  European 
nations  and  Latin-American  states  arising  out  of  pecmiiary  claims 
the  United  States  has  had  an  active  interest.  Especially  where  the 
occupation  of  American  territory  seemed  imminent,  the  United  States, 
by  virtue  of  its  responsibilities  under  the  Monroe  Doctrine,  has  felt 
called  upon  to  undertake  what  may  be  called  friendly  intervention  to 
prevent  such  occupation  and  yet  satisfy  the  creditor  nations. 

President  Roosevelt,  in  his  message  to  Congress  of  Dec.  5,  1905, 
stated  these  embarrassing  conditions,  pointing  out  at  the  same  time 
the  method  by  which  relief  from  this  critical  situation  could  be  most 
equitably  and  practically  secured.    In  his  message  he  said : 

"Our  own  government  has  always  refused  to  enforce  such  contractua' 
obligations  on  behalf  of  its  citizens  by  an  appeal  to  arms.  It  is  much 
to  be  -washed  that  all  foreign  governments  would  take  the  same  view. 
But  they  do  not,  and  in  consequence  we  are  liable  at  any  time  to  be 
brought  face  to  face  with  disagreeable  alternatives.    On  the  one  hand, 

^  Descamps  and  Renault,  Rec.  int.  des  traites  du  xx*  si^cle,  1901,  p.  188  et  seg. 
2  41  Clunet  (1914),  1440-1442. 


326  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

this  country  would  certainly  decline  to  go  to  war  to  prevent  a  foreign 
government  from  collecting  a  just  debt;  on  the  other  hand,  it  is  very 
inadvisable  to  permit  any  foreign  power  to  take  possession,  even  tem- 
porarily, of  the  custom-houses  of  an  American  Republic  in  order  to  en- 
force the  payment  of  its  obligations,  for  such  temporary  occupation 
might  turn  into  a  permanent  occupation.  The  only  escape  from  these 
alternatives  may  at  any  time  be  that  we  must  ourselves  undertake  to 
bring  about  some  arrangement  by  which  so  much  as  possible  of  a  just 
obligation  shall  be  paid.  It  is  far  better  that  this  country  should  put 
through  such  an  arrangement  rather  than  allow  any  foreign  country 
to  undertake  it.  To  do  so  insures  the  defaulting  republic  from  having 
to  pay  debts  of  an  improper  character  under  duress,  while  it  also  insures 
honest  creditors  of  the  republic  from  being  passed  by  in  the  interest 
of  dishonest  or  grasping  creditors."  » 

This  method  of  administering  the  finances  of  bankrupt  and  unstable 
governments  has  in  fact  been  applied  in  the  Dominican  Republic. 
In  1905  it  was  effective  in  restraining  the  forcible  attempt  of  Germany, 
Spain  and  Italy  to  secure  payment  of  arrears  of  interest  and  pledged 
revenues  to  their  subject  creditors.  International  practice  seems  to 
have  given  a  sanction  to  this  form  of  intervention.  It  might  be  called 
benevolent  intervention  in  the  interests  of  the  debtor  state  and  of  its 
creditors,  and  however  the  paternal  control  of  the  temporary  guardian 
may  hurt  the  pride  of  the  citizens  of  the  bankrupt  nation,  the  advan- 
tages resulting  to  world  peace  exceed  by  far  such  minor  disadvantages 
as  the  disapproval  of  a  few  patriotic  nationals.-  Nevertheless,  in  the 
absence  of  an  international  forum,  it  is  not  apparent  how  grossly  ex- 
aggerated claims  against  these  states  can  be  avoided,  for  presumably 
the  financial  administration  looks  only  to  the  payment  of  the  current 
expenses  and  of  the  national  debts  and  makes  no  provision  for  the 
judicial  examination  of  the  legitimacy  of  the  latter.  The  existence  of 
the  Piatt  Amendment  in  the  treaty  with  Cuba  and  in  the  proposed 
treaty  with  Nicaragua  is  an  effective  check  upon  the  undue  increase 
of  public  debts  by  these  countries.  The  unratified  treaties  of  1911 
l:)etween  the  United  States  and  Honduras  and  the  United  States  and 

1  For.  Rel.,  1905,  H.  Doo.  1,  59t.h  Cong.,  1st  sess.,  34-35. 

^  This  Latin-American  disapproval  of  the  policy  of  the  United  States  as  evidenced 
in  the  unratified  treaties  of  1911  with  Honduras  and  Nicaragua  is  expressed  in  a  serira 
of  pamphlets:  United  States  and  Latin-America,  Dollar  Diplomacy,  by  Juan  Leets, 
New  Orleans,  1912;  Nicaraguan  Affairs,  San  Job6,  1912;  the  Morgan-Honduras  Loan, 
3  parts,  New  Orleans,  1911-12. 


CONCLUSION  327 

Nicaragua  and  the  recently  proposed  "protectorate  "  treaty  with  Nicara- 
gua, all  of  which  were  invited  by  these  small  republics,  indicate  a  nec- 
essary policy  of  this  government,  whether  by  temporary  receivership  or 
supplementary  administrative  control,  to  secure  the  financial  rehabilita- 
tion of  the  weaker  states  of  Latin-America,  and  thus  reassure  foreign 
creditors  and  maintain  domestic  peace  and  prosperity  on  terms  most 
favorable  to  Latin- America.^ 

§  126.  Conclusion. 

The  Porter  proposition  is  by  no  means  a  complete  remedy  for  ex- 

'  European  countries  have  adopted  practices  of  various  kinds  to  assure  the  suc- 
cessful operation  of  a  loan  contract  concluded  between  a  foreign  nation  and  their  sub- 
jects. Thus  Great  Britain  has  provided  in  such  cases  for  the  selection  of  a  British 
supervisor  of  the  loan  and  the  government  "takes  cognizance"  of  the  contract.  The 
Corporation  of  Foreign  Bondholders,  an  association  for  the  protection  of  British 
holders  of  the  bonds  of  foreign  countries,  usually  seems  to  receive  material  support 
from  the  British  government  in  its  demands.  Similar  associations  e.xist  in  German}-, 
France,  and  Belgium  (41  Clunet,  1914,  137-140). 

In  the  Dominican  and  the  unratified  Honduras  and  Nicaraguan  treaties  with  the 
United  States,  diplomatic  protection  is  extended  to  the  receiver  or  supervisor  in  the 
performance  of  his  duties.  See  the  treaties  between  the  United  States  and  Dominican 
Republic,  Feb.  7,  1907,  Honduras,  Jan.  26,  1911,  and  Nicaragua,  June  8,  1911.  See 
also  editorial  comment  on  the  treaties  in  5  A.  J.  I.  L.  (1911),  1046-1051.  A  discussion 
of  the  treaties  by  Sec'y  of  State  Knox  is  contained  in  his  speech  before  the  New  York 
State  Bar  Association  (1912),  311-318.  An  elaborate  explanation  and  justification 
of  the  poUcy  of  the  United  States  in  negotiating  the  treaties  is  to  be  found  in  Presi- 
dent Roosevelt's  message  in  connection  with  the  customs  revenues  of  the  Dominican 
RepubUc,  Confidential  Executive,  V,  58th  Cong.,  3rd  sess.  See  also  speeches  incident 
to  the  visit  of  Philander  C.  Knox  to  the  countries  of  the  Caribbean,  Feb.  23  to  April  17, 
1912  (Washington,  1913,  ch.  Ill  and  IV).  France  has  apparently  no  objection  to 
using  its  subjects'  foreign  loans  to  foster  its  commercial  interests.  Speech  of  M. 
Pichon,  Minister  of  Foreign  Affairs,  in  the  Chamber  of  Deputies,  Jan.  13,  1911, 
Journal  Official,  Jan.  14,  1911.  Notwithstanding  the  disapproval  by  the  present 
Administration  of  "dollar  diplomacy" — an  ill-defined  and  much-abused  term — as 
evidenced  in  the  withdrawal  from  the  Chinese  loan,  the  Administration  has  clearly 
indicated  by  the  proposed  so-caUed  "protectorate"  treaty  with  Nicaragua  its  neces- 
sary interest  in  the  financial  stability  of  the  small  Latin-American  states.  The  recent 
threat  of  Great  Britain  to  dispatch  a  warship  to  Guatemala  to  secure  the  payment  of 
debts  and  the  resulting  appeal  of  Guatemala  to  the  United  States  presents  a  famiUar 
situation  in  our  Latin-American  relations.  By  reason  of  the  Monroe  Doctrine,  we 
cannot  avoid  an  active  concern  in  the  adjustment  of  these  difficulties,  and  had  better 
sanction  a  method  of  peaceful  admiuistrative  supervision  most  conformable  to  the 
interests  of  all  parties  concerned. 


328  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

isting  evils,  except  in  so  far  as  it  protects  a  debtor  state  from  the  m- 
mediate  use  of  force.  It  still  permits  of  much  injustice  to  the  debtor 
nation,  inasmuch  as  claims  are  still  presented  on  ex  parte  evidence 
without  a  judicial  examination  of  the  merits  of  the  case.  Experience 
has  shown  that  claims  are  generally  greatly  exaggerated.  Again,  the 
creditor's  national  government  is  not  required  to  arbitrate.  The  failure 
to  make  or  accept  the  offer  of  arbitration  simply  precludes  the  use  of 
force  in  first  instance,  but  not  the  use  of  other  methods  of  oppression. 
Experience  has'  shown  that  it  is  only  against  weak  states  that  govern- 
ments will  interpose  to  secure  the  payment  of  contract  debts.  Moreover, 
there  is  a  question  whether  the  debtor  government  can  demand  ar- 
bitration.^   This  should  certainly  be  made  possible. 

On  the  other  hand,  the  unpaid  creditor  has  no  individual  right  to 
bring  about  the  adjustment  of  his  claim.  The  action  of  his  government 
in  his  behalf  depends  upon  political  considerations  and  is  entirely  a 
matter  of  expediency  and  policy.  If  his  government  for  any  reason* 
declines  to  become  interested  in  his  case  or  to  espouse  his  claim  against 
the  foreign  government,  the  creditor  is  without  a  remedy.  A  legal  right 
of  the  individual  may  therefore  be  sacrificed  to  the  political  exigencies 
of  his  government.  With  the  constant  growth  of  international  contract- 
ual relations  between  individuals  and  foreign  governments,  the  fulfill- 
ment and  enforcement  of  legal  obligations  toward  individuals  should 
be  divorced  from  pohtical  considerations.  The  difference  in  the  prac- 
tice of  governments  in  the  support  of  contract  claims  gives  an  unequal 
advantage  to  the  nationals  of  some  states  and  correspondingly  em- 
barrasses the  governments  whose  policy  or  practice  it  is  to  decline 
diplomatic  pressure  in  such  cases. 

These  various  defects  of  the  system  as  it  still  exists,  with  its  possi- 
bilities of  injustice  either  to  the  debtor  state  or  the  unpaid  creditor, 
or  both,  lend  much  weight  to  the  proposal,  advanced  with  greatest 
emphasis  in  Gennany,  that  an  international  court  be  created  by  inter- 
national agreement  for  the  adjustment  of  these  essentially  legal  claims. 
The  individual  should  be  given  the  right  to  bring  suit  against  the  debtor 
nation  before  this  international  tribunal,  as  has  been  done  in  the  con- 
vention for  the  establishment  of  an  international  prize  court  and  in 

'  O.  Nippold  in  18  Ztschr.  fiir  internationales  privat.  u.  offentliches  Recht,  260. 


CONCLUSION  329 

the  treaty  of  Washington  for  the  establishment  of  a  Central  American 
Court  of  Arbitration.  The  creditor  will  thus  be  assured  of  a  hearing,  the 
del)tor  state  will  be  secured  against  the  pressure  of  exorbitant  claims 
accompanied  by  disagreeable  diplomatic  coercion,  the  government  of 
the  claimant  will  avoid  what  is  always  a  potential  germ  of  international 
difficulty  and  ill-will,  with  the  incidental  expense  of  pressing  a  dip- 
lomatic claim,  and  the  peace  of  the  world  will  be  fostered  by  the  re- 
moval of  one  great  source  of  international  conflict.  The  details  of 
the  organization  and  operation  of  this  international  court  may  be  left 
to  the  delegates  of  the  Third  Hague  Peace  Conference,  who  may  profit- 
ably examine  the  proposals  of  several  learned  Germans.^  The  prospect 
and  opportunity  for  thus  advancing  the  cause  of  international  justice, 
toward  which  goal  the  Porter  proposition  makes  only  a  slight  forward 
step,  must  command  universal  support. 

*  See  the  Denkschiift  or  memorial  of  the  Altesten  der  Kaufmannschaft  von  Berlin 
to  the  Imperial  Chancellor,  Sept.  30,  1910,  reprinted  in  20  Niemeyer's  Zeitschrift  fiir 
Internationales  Recht,  594—599,  and  the  Denkschrift  of  Maj-  20,  1912,  summing  up 
the  whole  matter,  reprinted  in  Berliner  Jahrbuch  fiir  Handel  and  Industrie,  497-514. 
See  also  the  following  works:  Freund,  G.  S.,  Der  Schutz  der  Glaubiger,  BerUn,  1910, 
§§  5,  43  et  seq.;  Wehberg,  Hans,  Ein  internationaler  Gerichtshof  fiii-  Privat-klagen, 
Berlin,  1911,  in  which  plans  for  the  organization  and  operation  of  an  international 
tribunal  are  carefully  worked  out.  See  also  Wehberg's  article.  Die  Durchsetzung  von 
Privatanspriichen  gegen  Schuldnerstaaten,  in  Jahrbuch  f.  d.  int.  Rechtsverkehr, 
1912-13,  391-402,  and  an  article  in  Deutsche  Wirtschafts-Zeitmig,  1912,  704-710, 
Zur  Errichtung  eines  internationalen  Schiedsgerichtes  fiir  Streitigkeiten  zwischen 
Privatpersonen  und  auslandischen  Staaten.  See  also  Fischer,  Otto,  Die  Verfolgung 
vermogensrechtlicher  Anspriiche  gegen  auslandische  Staaten  (Leipzig,  1912)  and 
references  to  the  proposals  of  others  mentioned  on  pp.  15-16;  and  a  further  note  by 
Fischer  in  43  Ztschr.  f .  deutschen  Zivilprozess,  282-284,  and  works  already  cited 
Meili,  Staatsbankerott,  etc.,  41,  50,  58,  59  and  63,  and  Pflug,  58-70. 


CHAPTER  Vin 

INTERNATIONAL   RESPONSIBILITY  OF  THE   STATE— Con- 
tinued.    DENIAL  OF  JUSTICE 

§  127.  Meaning  of  the  Term. 

In  last  analysis,  a  denial  of  justice  is  the  fundamental  basis  of  an 
international  claim.  It  connotes  some  unlawful  violation  of  the  rights 
of  an  alien.  The  term,  however,  is  used  in  two  senses.  In  its  broader 
acceptation  it  signifies  any  arbitrary  or  wrongful  conduct  on  the  part  of 
any  one  of  the  three  departments  of  government — executive,  legisla- 
tive or  judicial.  The  term  includes  every  positive  or  negative  act  of 
an  authority  of  the  government,  iiot_redj:esjed  bjr^thejiidiciary,  which 
denies  to  the  alien  that  protection  and  lawful  treatment  to  which  he 
is  duly  entitled.  Under  the  head  of  aliens,  and  in  the  preceding  chap- 
ters on  the  responsibility  of  the  state,  we  have  discussed  the  question 
of  the  liability  of  the  government  for  many  of  those  injuries  which 
may  be  inflicted  on  aliens  in  violation  of  municipal  law,  international 
law,  treaties  or  the  ordinary  principles  of  civilized  justice.  These  are 
denials  of  justice  in  the  broader  sense.  For  example,  a  wrongful  ex- 
pulsion, false  imprisonment,  confiscatory  breach  of  contract,  wanton 
pillage  by  officered  government  troops,  confiscation  of  property  by 
legislative  act  or  executive  decree,  failure  to  punish  a  criminal  offense, 
all  constitute  different  forms  of  denial  of  justice. 

In  its  narrower  and  more  customary  sense  the  term  denotes  some 
misconduct  or  inaction  of  the  judicial  branch  of  the  government  by 
v.hich  an  alien  is  denied  the  benefits  of  due  process  of  law.  It  involves, 
therefore,  some  violation  of  rights  in  the  administration  of  justice, 
or  a  wrong  perpetrated  by  the  abuse  of  judicial  process.  It  is  in  this 
sense  that  the  term  will  be  considered  in  the  present  discussion.^ 

*  The  distinction  between  the  broad  and  narrow  meaning  of  denial  of  justice  was 
considered  in  the  case  of  Fabiani  (France)  v.  Venezuela,  P'eb.  24,  1891,  Moore's  Arb. 
4878,  discussed  by  R.  Floyd  Clarke  in  1  A.  J.  I.  L.  (1907),  389  et  seq. 

330 


DENIAL   OF   JUSTICE  331 

Some  reference  was  made  to  denial  of  justice  in  the  discussion  of  the 
responsibility  of  the  state  for  the  acts  of  judicial  authorities,  although 
it  was  there  attempted  to  avoid  any  treatment  of  those  specific  viola- 
tions of  right  or  due  process  by  the  courts  which  have  come  to  be  known 
as  denials  of  justice.  For  the  present  purpose,  an  undue  delay  of  justice 
or  manifestly  unjust  judgment  may  be  considered  as  equivalent  to 
a  denial  of  justice. 

Before  undertaking  any  detailed  discussion  of  the  subject,  it  may  be 
well  to  note  that  no  definition  of  denial  of  justice  as  used  in  the  broader 
sense  is  feasible.    As  was  said  by  Secretary  of  State  Gresham : 

"The  general  ground  of  diplomatic  intervention  ...  in  behalf 
of  private  persons  is  a  denial  of  justice,  and  the  question  whether  there 
has  been,  or  is  likely  to  be,  such  denial  is  one  that  can  be  determined 
only  on  the  circumstances  of  each  particular  case  as  it  may  arise."  ^ 

§  128.  Conditions  Incident  and  Precedent  to  Diplomatic  Interposi- 
tion. 
It  is  also  important  to  note  that  the  claimant  government  deter- 
mines for  itself  whether  a  denial  of  justice  warranting  diplomatic  inter- 
position has  taken  place.  In  other  words,  not  only  is  it  frequently  an 
uncertain  standard  to  which  a  given  violation  of  an  alien's  rights  may 
be  referred,  but  his  own  government  (and  not  the  local  government) 
is  the  judge  of  the  perpetration  of  a  denial  of  justice  by  the  state  of 
residence.    Thus  Secretary  of  State  Blaine  aptly  said : 

"Where  the  question  presented  is  whether  the  Government  of  a 
country  has  discharged  its  duty  in  rendering  protection  to  the  citizens 
of  another  nation,"  it  cannot  "be  conceded  that  that  government  is 
to  be  the  judge  of  its  o^\'n  conduct."  - 

And  Secretary  Fish  in  this  connection  remarked: 

"Foreign  governments  have  a  right,  and  it  is  their  duty,  to  judge, 
whether  their  citizens  have  received  the  protection  due  to  them  pur- 
suant to  public  law  and  treaties."  » 

In  this  fact  lies  the  primary  condition  for  the  all  too  frequent  abuse,  by, 
strong  states,  of  the  rights  of  weaker  countries. 

'  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Sheehan,  Aug.  25, 1894,  Moore's  Dig.  VI,  272. 
2  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Dougherty,  Jan.  5,  1891,  Moore's  Dig.  VI,  805. 
'  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Foster,  Dec.  16, 1873,  Moore's  Dig.  VI,  265.    See 
also  Mr.  Bayard  to  Mr.  Morgan,  April  27,  1886,  ibid.  VI,  668. 


332  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS    ABROAD 

On  the  other  hand,  it  is  to  be  noted  that  as  a  general  rule  the  exhaus- 
tion of  local  remedies  is  considered  a  necessary  condition  precedent  to  re- 
course to  diplomatic  interposition.  Only  when  these  remedies  have  been 
exhausted,  and  a  denial  of  justice  established,  does  formal  diplomatic 
espousal  of  a  claim,  as  opposed  to  the  use  of  good  offices,  become  proper. 
Claimant  governments  dispense  with  the  requirement  of  exhausting 
local  remedies  when  those  remedies  appear  insufficient,  illusory  or 
ineffective  in  securing  adequate  redress.^  It  may  be  noted,  however, 
that  before  a  denial  of  justice  has  actually  been  perpetrated,  and  while 
the  case  is  still  pending,  foreign  governments  may  use  their  good  offices 
to  see  that  their  citizens  abroad  receive  the  benefits  of  due  process  of 
law,  in  order  that  a  denial  of  justice  may  be  avoided. 

It  has  already  been  observed  that  the  state  is  not  responsible  for 
the  mistakes  or  errors  of  its  courts,^  especially  when  the  decision  has 
not  been  appealed  to  the  court  of  last  resort.  Nor  does  a  judgment 
involving  a  bona  fide  misinterpretation  by  the  court  of  its  municipal 
law  entail,  on  principle,  the  international  liability  of  the  state.  Only 
if  the  court  has  misapplied  international  law,  or  if  the  municipal  laAV 
in  question  is  in  derogation  of  the  international  duties  of  the  state, 
or  if  the  court  has  willfully  and  in  bad  faith  disregarded  or  misinter- 
preted its  municipal  law,  does  the  state  incur  international  liability. 
There  is,  however,  no  international  obligation  of  the  state  to  see  to 
it  that  the  decisions  of  its  courts  are  intrinsically  just.^  While  in  theory 
an  unjust  judgment  reached  by  proper  observance  of  the  rules  of  inter- 
national law  and  the  forms  of  civilized  justice  does  not  render  the 
state  liable,^  it  will  be  noticed  hereafter  that  in  practice  the  rule  is 
not  usually  observed.  An  unjust  judgment  has  on  numerous  oc- 
casions been  regarded   as  not  internationally  binding,  even  in    the 

'  The  necessity  to  exhaust  local  remedies  is  for  our  purposes  considered  a  limitation 
on  diplomatic  protection.    The  matter  is  discussed,  infra,  §  381  ct  scq. 

2  Supra,  p.  195.  See  also  Mr.  Marcy  to  Baron  dc  Kalb,  July  20,  ISfj.^,  2  Wharton, 
.505,  and  Mr.  Bayard  to  Mr.  Morrow,  Feb.  17,  1886,  Moore's  Dig.  VI,  280.  Man.s- 
field's  opinion  in  the  Silesian  loan  case,  cited  by  Randolph,  Atty.  Gen.,  in  Pagan's 
case,  1  Op.  Atty.  Gen.  25,  32. 

3  Anzilotti  in  13  R.  G.  D.  I.  P.  (1906),  22.  See  also  Pomeroy  (Woolsey's  ed.  1886), 
§  205,  to  the  effect  that  no  state  warrants  the  infallibility  of  its  courts. 

*  Infra,  p.  340,  note  5. 


CONDITIONS   INCIDENT   TO    DIPLOMATIC    INTERPOSITION  333 

absence  of  any  violation  of  due  process  of  law  or  irregularity  in 
procedure.^ 

Excess  of  jurisdiction  by  the  courts  was  held  in  the  celebrated  Costa 
Rica  Packet  arbitration  to  entail  international  responsibility,  although 
Secretary  of  State  Marcy  in  1856  denied  this  rule.^  The  degree  of 
responsibility  incurred  by  the  state  through  the  misfeasance  of  its 
judges  in  their  official  or  private  capacities  has  already  been  considered.'' 

Before  taking  up  specific  examples  of  denial  of  justice,  it  may  be 
well  to  recall  certain  fundamental  general  principles.  The  rule  that 
those  who  resort  to  foreign  countries  are  bound  to  submit  to  the  local 
law  as  expounded  by  the  judicial  tribunals  is  disregarded  only  under 
exceptional  circumstances,  namely,  when  palpable  injustice  has  been 
voluntarily  committed  by  the  courts.*  Secretary  of  State  Bayard  in  1886 
remarked  that  "when  application  is  made  to  [the]  Department  for  re- 
dress for  the  supposed  injurious  actions  of  a  foreign  judicial  tribunal,  such 
appUcation  can  only  be  sustained  on  one  of  two  grounds: 

"  (1)  Undue  discrimination  against  the  petitioner  as  a  citizen  of  the 
United  States  in  breach  of  treaty  obligations,  or 

"(2)  Violation  of  those  rules  for  the  maintenance  of  justice  in  judicial 
enquiries  which  are  sanctioned  by  international  law."  '" 

The  limitations  unplied  in  the  latter  principle  must  be  clearly 
understood.  Thej^  are  intended  to  limit  formal  diplomatic  interposi- 
tion to  cases  in  which  the  judicial  proceedings  have  violated  the  \im/ 
versally  recognized  principles  of  civilized  justice.  For  example,  the 
system  of  criminal  law  in  force  in  many  countries  is  harsher  than  that 
appfied  in  American  courts;  e.  g.,  the  mquisitorial  system  prevails  in 
many  foreign  countries,  and  trial  by  jury,  habeas  corpus  and  those 
many  safeguards  which  our  laws  provide  for  the  benefit  of  the  accused 

» Infra,  p.  340. 

*  Supra,  p.  196.  See,  however,  the  assertion  of  liabiUty  by  Earl  Granville,  Sept.  30, 
1881,  74  St.  Pap.  1172,  and  account  in  Baty,  172-175. 

'  Supra,  §  52. 

*  Mr.  Forsyth,  Sec'y  of  State,  to  Mr.  Semple,  Feb.  12,  1839,  Moore's  Dig.  VI,  249. 

*  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Morrow,  Feb.  17,  1886,  ibid.  VI,  280,  2  Whar- 
ton, 649.  See  also  Grotius,  III,  ch.  2,  §  5;  Vattel,  II,  ch.  18,  §  350;  Pradier-Fod^re, 
§  403;  G.  F.  de  Martens,  Precis,  §  96;  Baty,  163  et  seq.,  172,  233;  Phillimore,  3rd  ed., 
11,4. 


334  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

are  unknown.^  Yet  an  American  citizen  who  resorts  to  such  a  country 
is  bound  to  submit  to  its  laws  and  judicial  system,  and  his  own  govern- 
ment is  justified  in  intervening  in  his  behalf  only  if  the  laws  themselves, 
the  methods  provided  for  administering  them,  and  the  penalties  pre- 
scribed are  in  derogation  of  the  principles  of  civilized  justice  as  univer- 
sally recognized  or  if,  in  a  specific  case,  they  have  been  wrongfully  sub- 
verted by  the  courts  so  as  to  discriminate  against  him  as  an  alien  or 
perpetrate  a  technical  denial  of  justice."  Treaties  usually  stipulate 
that  citizens  of  the  contracting  parties  shall  have  free  access  to  the 
courts  and  such  other  safeguards  for  the  regular  conduct  of  judicial 
proceedings  and  the  proper  administration  of  justice  as  is  provided 
by  the  local  law  for  natives.  But  apart  from  treaty  obligation  it  is 
believed  that  aliens  must  be  accorded  appropriate  judicial  recourse 
for  the  due  protection  of  their  rights. 

Even  those  states  of  Latin-America  which  seek  to  confine  the  dip- 
lomatic interposition  of  foreign  governments  on  behalf  of  their  citizens 
to  its  narrowest  limits  admit  that  a  denial  or  undue  delay  of  justice 
(after  exhaustion  of  local  remedies)  is  a  valid  ground  for  such  inter- 
vention.^ A  few  states  have  attempted  to  narrow  the  scope  of  dip- 
lomatic interposition  still  further  by  providing  a  legislative  definition 
of  the  term  "  denial  of  justice."  ^  The  law  of  Salvador  of  September  29, 
1886,  for  example,  provides  (art.  40)  that 

"  It  is  to  be  understood  that  there  is  a  denial  of  justice  only  when  the 
judicial  authority  refuses  to  make  a  formal  declaration  upon  the  prin- 
cipal subject  or  upon  any  incident  of  the  suit  .  .  .;  consequently,  the 
fact  that  the  judge  may  have  pronounced  a  decision  or  sentence,  in 
whatever  sense  it  may  be,  although  it  may  be  said  that  the  decision  is 

'  Supra,  p.  97.  See  Webster's  report  to  the  President  in  Thrasher's  case,  Dee.  23, 
1851,  2  Wharton,  613;  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Jackson,  Apr.  6,  1855,  ibid. 
614;  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Mr.  Lowell,  Apr.  25,  1882,  For.  Rel., 
1882,  230.    See  also  2  Wharton,  §  230  a. 

2  See,  e.  g.,  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Fay,  Nov.  16, 1855,  Moore's  Dig.  VI, 
655.  Same  to  Mr.  Jackson,  Apr.  6,  1855,  ibid.  275.  Same  to  Mr.  Starkweather, 
Aug.  24,  1855,  ibid.  264. 

3  Infra,  p.  843. 

*  Honduras,  Law  of  April  10,  1895,  art.  35,  87  St.  Pap.  706;  Salvador,  Law  of 
Sept.  29,  1886,  arts.  39,  40  and  41,  77  St.  Pap.  116-118,  For.  Rel.,  1887,  69  et  seq.; 
Guatemala,  decree  of  Feb.  21,  1894,  art.  42,  86  St.  Pap.  1281  et  seq.  See  infra,  p.  846, 
and  Moore's  Dig.  VI,  267  et  seq. 


"denial  of  justice"  in  international  practice  335 

iniquitous  or  given  in  express  violation  of  law,  cannot  be  alleged  as  a 
denial  of  justice." 

In  other  words,  if  a  tlecision  has  been  rendered,  however  iniquitous 
it  may  be,  it  would  seem  that  a  "denial  of  justice"  may  no  longer  be 
alleged.  Secretary  Bayard  in  declining  to  admit  that  Salvador  could 
thus  make  the  decisions  of  its  courts  internationally  binding,  added 
that  while  "it  may  be  admitted  as  a  general  rule  of  international  law 
that  a  denial  of  justice  is  a  proper  ground  of  diplomatic  intervention, 
this  ...  is  merely  the  statement  of  a  principle  and  leaves  the  question 
in  each  case  whether  there  has  been  such  denial  to  be  determined  by 
the  application  of  the  rules  of  international  law."  ^ 

It  is  hardly  to  be  supposed  that  any  foreign  state,  even  among  those 
which  have  concluded  treaties  with  Latin-American  republics  pro- 
viding for  a  renunciation  of  diplomatic  interposition  in  all  cases  except 
denial  of  justice,  would  consider  itself  bound  by  a  municipal  legislative 
interpretation  of  the  term  "denial  of  justice."  Diplomatic  representa- 
tions against  these  municipal  laws  have  in  fact  been  made.^ 

The  action  of  a  government  in  protecting  its  citizens  abroad  when 
their  grievances  appear  capable  of  redress  by  judicial  means,  is  in  first 
instance  confined  to  securing  for  them,  usually  by  informal  representa- 
tions, free  access  to  the  local  courts  and  an  equality  of  treatment  with 
natives. 

It  having  been  established  that  a  state  should  not  and  generally 
does  not  interfere  officially  in  the  causes  of  its  citizens  brought  before 
the  local  tribunals  or  in  cases  in  which  they  are  subject  to  the  juris- 
diction of  the  local  law,  except  in  the  event  of  a  denial  of  justice  or 
notorious  injustice,  it  becomes  necessary  to  determine  under  what 
circumstances  a  denial  of  justice  may  be  said  to  have  occurred. 

§  129.  "  Denial  of  Justice  "  in  International  Practice. 

Undoubtedly  the  absence  of  any  impartial  tribunal  from  which  justice 
may  be  sought,^  the  arbitrary  control  of  the  courts  by  the  government,* 

1  Mr.  Bayard  to  Mr.  Hall,  Nov.  29,  1886,  For.  Rel.,  1887,  80-81. 

2  Infra,  p.  847. 

3  Mr.  Cass,  Sec'y  of  State,  to  Mr.  Dimitry,  March  3,  1860,  2  Wharton,  615.  Mr. 
Bayard,  Sec'y  of  State,  to  Mr.  Buck,  Nov.  1,  1886,  Moore's  Dig.  VI,  267.  See  also 
injra,  §  383. 

'  Idler  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3517. 


336  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

the  inability  or  unwillingness  of  the  courts  to  entertain  and  adjudicate 
upon  the  grievances  of  a  foreigner,^  or  the  use  of  the  courts  as  instru- 
ments to  oppress  foreigners  and  deprive  them  of  their  just  rights  ^  may 
each  and  all  be  regarded  as  equivalent  to  a  denial  of  justice,  excusing 
a  resort  to  local  remedies  and  warranting  diplomatic  interposition. 
Justice  may  also  be  denied  by  studied  delays  and  impediments  in  the 
proceedings,  which  in  effect  are  equivalent  to  a  refusal  to  do  justice.^ 
These  principles  apply  with  equal  force  to  administrative  authorities 
acting  in  a  judicial  or  quasi-judicial  capacity.^ 

Justice  may  be  denied  in  the  course  of  judicial  proceedings  in  ways 
too  diverse  to  recount  in  detail.  It  may  be  profitable,  however,  to  men- 
tion some  of  the  cases  in  which  a  denial  of  justice  has  been  held  to  exist 
by  the  government  of  an  injured  individual  or  by  an  arbitral  commis- 
sion. For  this  purpose  we  may  discuss  (1)  the  denial  of  justice  arising 
prior  to  the  trial  or  hearing  of  a  case,  including  a  wrongful  failure  by 
the  authorities  to  have  recourse  to  judicial  proceedings;  (2)  various 
forms  of  denial  of  justice  or  notorious  injustice  in  the  course  of  the 
trial  or  of  judicial  proceedings;  and  (3)  acts  occurring  after  the  trial, 
including  a  grossly  unfair  decision,  which  have  been  construed  as  a 
denial  of  justice. 

Among  the  first  class  of  acts,  in  which  the  denial  of  justice  is  predi- 
cated upon  wrongs  inflicted  by  governmental  authorities  prior  to  trial, 
in  willful  disregard  of  due  process  of  law,  may  be  mentioned  the  arbi- 
trary annulment  of  concession  contracts  without  recourse  to  judicial  pro- 
ceedings; ^  the  seizure  or  confiscation  of  property  without  legal  process;  ^ 

'  Phillimore,  II,  4,  cited  by  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  McLane,  June  23, 
1886,  Moore's  Dig.  VI,  266;  Tagliaferro  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston, 
765. 

2  Mr.  Marcy,  Sec'y  of  State,  to  Baron  de  Kalb,  July  20,  1855,  2  Wharton,  505; 
Mr.  Buchanan,  Sec'y  of  State,  to  Mr.  Ten  Eyck,  Aug.  28,  1848,  Moore's  Dig.  VI, 
273;  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Clay,  May  24,  1855,  iMd.  659. 

» Fabiani  (France)  v.  Venezuela,  Feb.  24,  1891,  Moore's  Arb.  4878  at  4895,  and 
authorities  there  cited. 

*  Akerman,  Atty.  Gen.,  in  13  Op.  Atty.  Gen.  547;  PoggioU  (Italy)  v.  Venezuela, 
Feb.  13,  1903,  Ralston,  869. 

<*  Supra,  p.  292. 

'2  Wharton,  §235,  For.  Rel.,  1885,  525  (trespasses  and  evictions);  Mr.  Bayard, 
Sec'y  of  State,  to  Mr.  Thompson,  Mar.  9,  1886,  Moore's  Dig.  VI,  704;  Mr.  Bayard, 


"denial  of  justice"  in  international  practice  337 

unlawful  arrest  or  detention  of  a  person;  ^  the  unduly  long  deten- 
tion or  imprisonment  without  trial  or  allegation  of  offense  of  per- 
sons accused  of  crime,^  either  in  violation  of  municipal  law  ^  or  of 
treaty;  "*  the  execution  of  an  accused  person  without  trial;  ^  the  deten- 
tion and  confiscation  of  vessels  without  legal  process;  ^  inexcusable 
delay  in  investigating  the  circumstances  of  a  charged  offense  prelimi- 
nary to  a  criminal  prosecution ; "  permitting  a  guilty  person  to  escape 
or  failure  to  institute  proceedings  against  such  a  person;^  the  inten- 
tional obstruction  of  claimant's  attempt  to  obtain  judicial  redress;' 

Sec'y  of  State,  to  Mr.  Buck,  Jan.  19,  1888,  iUd.  254;  Hammond  (U.  S.)  v.  Mexico, 
Apr.  11,  1839,  Moore's  Arb.  3241;  Cheek  (U.  S.)  v.  Siam,  Moore's  Arb.  1899-1908, 
For.  Rel.,  1897,  461-480  (violation  of  treaty  and  of  Siamese  law). 

1  Supra,  p.  98. 

2  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Mr.  Lowell,  Apr.  25,  1882,  For.  Rel,  1882, 
230,  Moore's  Dig.  VI,  276;  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Jackson,  July  26, 
1886,  ibid.  281.  Cases  before  Spanish  Treaty  Claims  Com.,  Final  Report,  p.  14. 
Supra,  p.  99. 

'  Driggs  (U.  S.)  V.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3125;  Moliere  (U.  S.)  v. 
Spain,  Feb.  12,  1871,  iMd.  3252;  The  Jane  (U.  S.)  v.  Mexico,  April  11,  1839,  ibid. 
3119;  KeUey  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Opin.  312  (not  in  Moore).  Supra, 
p.  99. 

*  Mr.  Buchanan,  Sec'y  of  State,  to  Mr.  Campbell,  Dec.  11,  1848  (holding  citizen 
"incommunicado"),  Moore's  Dig.  VI,  274;  Ingrid  case,  S.  Rep.  824,  63d  Cong.,  2nd 
sess.,  H.  Doc.  1172,  ibid.;  Sartori  (U.  S.)  v.  Peru,  Jan.  12,  1863,  Moore's  Arb.  3120 
(imprisonment  without  formal  commitment  and  undue  delay,  48  hours,  in  taking 
claimant's  declaration);  Cases  before  Spanish  Treaty  Claims  Com.,  Final  Report, 
p.  14.  In  time  of  war,  the  strict  requirements  of  civil  process  are  often  suspended. 
Stetson  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3131.    Supra,  p.  99. 

6  Portuondo  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  3007.  The  killing  of 
Cannon  and  Groce  by  Zelaya  without  trial,  instead  of  their  treatment  as  prisoners  of 
war,  inasmuch  as  they  were  taken  while  fighting  in  the  ranks  of  the  revolutionists, 
constituted  the  basis  of  the  U.  S.  claim  against  Nicaragua,  1909. 

«The  Jane  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  3119  (detention); 
Andrews  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2769;  Stetson  (U.  S.)  v.  Mexico,  ibid. 
3131  (violation  of  treaty).    Sujwa,  p.  99. 

'  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Ryan,  June  28,  1890,  Moore's  Dig.  VI,  282; 
Renton  claim  v.  Honduras,  For.  Rel.,  1904,  352,  363;  Bark  Jones  (U.  S.)  v.  Great 
Britain,  Feb.  8,  1853,  Moore's  Arb.  3054;  Andrews  (U.  S.)  v.  Mexico,  July  4,  1868, 
ibid.  2769. 

*  Cases  of  Robert,  in  Spain,  1876  and  of  Capt.  Cornwall  in  1871,  G.  de  Leval,  §  99. 
See  also  supra,  p.  218  and  notes. 

9  Mr.  Evarts,  Sec'y  of  State,  to  Mr.  Fairchild,  Jan.  17,  1881,  Moore's  Dig.  VI,  656; 
Ballistini  (France)  v.  Venezuela,  Feb.  19,  1902,  Ralston,  503. 


338  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

unlawful  change  of  venue;  ^  fixing  an  unreasonably  brief  time  in  which 
to  sue;  ^  or  illegal  change  in  the  personnel  of  the  court  or  the  use  of 
other  unlawful  means  to  influence  the  court's  decision.^ 

The  methods  by  which  justice  may  be  denied  in  the  course  of  a  trial 
or  judicial  proceedings  are  too  numerous  to  detail.  In  a  general  way, 
the  conduct  of  a  trial  with  palpable  injustice  *  or  in  violation  of  the 
settled  forms  of  law  or  of  those  rules  for  the  maintenance  of  justice 
which  are  sanctioned  by  international  law  ^  warrants  diplomatic  inter- 
position. Thus,  for  example,  a  Violation  of  the  rules  of  municipal  law 
or  procedure  or  of  treaties,  by  which  injustice  is  perpetrated  or  a  for- 
eigner is  unduly  discriminated  against,^  by  the  refusal  to  hear  testimony 

'  Bark  Jones  (U.  S.)  v.  Great  Britain,  Feb.  8,  1853,  Moore's  Arb.  3048  (Opinion 
by  Upham). 

2  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Dudley,  Mar.  28,  1899,  Moore's  Dig.  VI,  1003. 

3  Idler  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3517;  Cases  in  Mexico, 
1912-1914. 

*  Mr.  Evarts,  Sec'y  of  State,  to  Mr.  Langston,  April  12,  1878,  2  Wharton,  623, 
Moore's  Dig.  VI,  623;  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Jackson,  Sept.  7,  1886, 
Moore's  Dig.  VI,  680;  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Gushing,  Dec.  27,  1875,  2 
Wharton,  621.  The  Rebecca,  Mr.  Bayard,  Sec'y  of  State,  to  the  President,  Feb.  26, 
1887,  Moore's  Dig.  VI,  666-668  (U.  S.  did  not  press  this  case  to  successful  settle- 
ment). 

*  Vattel,  Ghitty-Ingraham  ed.,  165.  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Morrow, 
Feb.  17,  1886,  Moore's  Dig.  VI,  280;  Parrott  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Moore's 
Arb.  3009;  Gotesworth  and  Powell  (Gt.  Brit.)  v.  Golombia,  Dec.  14,  1872,  Moore's 
Arb.  2050,  2081. 

6  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Fay,  Nov.  16,  1855,  Moore's  Dig.  VI,  655; 
Mr.  Marcy  to  Baron  de  Kalb,  July  20,  1855,  2  Wharton,  505;  Mr.  Bayard  to  Mr. 
Morrow,  Feb.  17,  1886,  Moore's  Dig.  VI,  280;  Rozas  (U.  S.)  v.  Spain,  Feb.  12,  1871, 
Moore's  Arb.  3124  (trial  by  military  proceedings  contrary  to  treaty);  Van  Bokkelen 
(U.  S.)  V.  Haiti,  May  24,  1888,  ibid.  1812,  1845  (denial  of  right  to  make  assignment, 
contrary  to  treaty);  Gotesworth  and  Powell  (Gt.  Brit.)  v.  Golombia,  Dec.  14,  1872, 
Moore's  Arb.  2050,  2084  (absence  of  judge  from  official  duties  involving  special  dam- 
age); Garrison  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3129  (gross  irregularities,  and 
prevention  of  appeal  by  intrigue;  Idler  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  ibid.  3517 
(illegal  change  in  personnel  of  court,  and  wrongfully  invoking  of  obsolete  remedy  by 
government  ending  claimant's  litigation  in  court);  Diana,  Gardner  (U.  S.)  v.  Great 
Britain,  Nov.  19,  1794,  ibid.  3073  (unjust  order  to  pay  costs  under  art.  VII  of  Jay 
treaty);  The  Neptune  (U.  S.)  v.  Great  Britain,  Nov.  19,  1794,  ibid.  3076  (arbitrary 
valuation  and  sale  of  captured  cargo).  The  condemnation  by  a  Russian  prize  court 
f)f  the  S.  S.  Oldhamia  was  considered  by  Sir  Edward  Grey  as  a  denial  of  justice  be- 
cause against  the  weight  of  evidence.  Misc.  No.  1  (1912),  Cd.  6011,  p.  17;  Pradel 
[V.  S.)  V.  Mexico,  July  4,  1868,  ibid.  3141  (fine  in  course  of  illegal  trial).    See  Bullis 


"denial  of  justice"  in  international  practice  339 

on  behalf  of  a  defendant  charged  with  crime,'  or  an  undue  or  needless 
delay  in  the  trial  or  decision  of  a  case,^  have  all  been  construed  as  de- 
nials of  justice.  When  feasible  and  where  an  effective  remedy  seems 
probable,  all  modes  of  appellate  revision  must  be  exhausted  before 
diplomatic  interposition  becomes  proper.  It  may  be  noted  that  ir- 
regularities in  the  course  of  judicial  proceedings,  not  amounting  tech- 
nically to  a  denial  of  justice  or  an  undue  discrimination  against  a  citizen 
(as  an  alien),  have  not  been  considered  as  a  ground  for  the  interference 
of  the  United  States.^  It  may  not  always  be  easy  to  determine  when 
an  irregularity  is  sufficiently  gross  so  as  to  become  a  denial  of  justice. 
A  denial  of  justice  after  trial  may  be  said  to  occur  when  the  proper 
authorities  of  a  foreign  country  refuse  to  execute  the  laws  as  inter- 
preted by  the  courts  of  the  country  or  to  give  effect  to  the  decisions  of 
the  courts;  ^  when  they  fail  to  punish  guilty  offenders,  or  mete  out 
inadequate  punishment;  ^  when  they  grant  a  pardon  or  amnesty  by 
which  the  alien  plaintiff  is  deprived  of  the  right  to  try  the  question 
of  liability;  ^  when  they  unlawfully  prevent  an  appeal  by  the  claimant;  ^ 

(U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  169,  170  {dictum)  for  criteria  of  denial  of 
justice.  For  the  position  of  the  U.  S.  when  an  ahen's  treaty  rights  are  violated  by 
state  authorities,  see  supra,  §  45. 

1  Mr.  Conrad,  Acting  Sec'y  of  State,  to  Mr.  Peyton,  Oct.  13,  1852,  2  Wharton,  613, 
Moore's  Dig.  VI,  275;  Mr.  Bayard  to  Mr.  Jackson,  Sept.  7,  1886,  Moore's  Dig.  VI, 
680;  The  Schooner  Good  Intmt  v.  U.  S.,  36  Ct.  CI.  262. 

'  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Mr.  Morgan,  Mar.  5,  1884,  Moore's 
Dig.  VI,  277,  2  Wharton,  637;  Protocol  between  France  and  Venezuela,  Feb. 
11,  1913,  Suppl.  to  7  A.  J.  I.  L.  (July,  1913)  218  (15  months'  delay  in  judgment 
of  municipal  court  gives  international  tribunal  jurisdiction).  See  also  the  Sally, 
Hays  (U.  S.)  v.  Great  Britain,  Nov.  19,  1794,  Moore's  Arb.  3101-19.  Supra, 
p.  99. 

3  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Starkweather,  Aug.  24,  1855,  Moore's  Dig. 
VI,  264;  Mr.  Olney,  Sec'y  of  State,  to  the  President,  Feb.  5,  1896,  For.  Rel.,  1895,  I, 
257.  Gross  irregularities  were  considered  a  denial  of  justice  in  Garrison  (U.  S.)  v. 
Mexico,  July  4,  1868,  Moore's  Arb.  3129;  Idler  (U.  S.)  v.  Venezuela,  Dec.  5,  1885, 
ibid.  3510,  3517,  3524,  and  other  cases  cited  in  footnote  6,  page  338. 

*  E.  g.,  neglect  or  refusal  to  execute  judgment.  Montano  (Peru)  v.  U.  S.,  Jan.  12, 
1863,  Moore's  Arb.  1630,  1634;  Fabiani  (France)  v.  Venezuela,  Feb.  24,  1891,  ibid. 
4878  at  4893,  4907  (in  violation  of  treaty);  Claim  of  W.  R.  Grace  v.  Peru,  Mr.  NeiU 
to  Mr.  Hay,  Sec'y  of  State,  Nov.  19,  1903,  For.  Rel.,  1904,  p.  678. 

*  Supra,  p.  218,  notes  2  and  3. 

*  Supra,  p.  218,  note  6. 

'  Garrison  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3129. 


340  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

or  inflict  unnecessarily  harsh,  cruel  or  arbitrary  punishment  upon  a 
prisoner.^ 

It  is  also  to  be  noted  that  a  grossly  unfair  or  notoriously  unjust  de- 
cision may  be  and  has  been  considered  as  equivalent  to  a  denial  of 
justice.^  According  to  the  older  authorities,  a  judicial  sentence  noto- 
riously unjust,  to  the  prejudice  of  an  alien,  entitles  his  government 
to  interfere  for  reparation  even  by  reprisals.^  But  the  inference  is 
that  this  doctrine  is  intended  to  apply  primarily  to  the  decisions  of 
prize  courts  and  not  to  those  of  municipal  courts  construing  municipal 
law."* 

§  130.  Extent  to  which  Unjust  Judgment  of  Municipal  Court  is  Inter- 
nationally Binding. 

This  brings  us  to  one  of  the  most  difficult  questions  in  international 
practice,  namely,  the  extent  to  which  an  unjust  judgment  of  a  munici- 
pal court  is  internationally  binding.  When  the  court  merely  errs  as  to 
fact  or  the  interpretation  of  its  municipal  law  there  appears  to  be,  on 
principle,  no  ground  for  international  reclamation,  provided  the  court 
was  competent  and  observed  the  regular  forms  of  law.^  Given  good 
faith,  a  fair  opportunity  to  the  alien  to  be  heard,  and  the  absence  of 
discrimination  between  native  and  foreigner,  it  would  seem  that  the 
judgment  of  a  municipal  court  interpreting  municipal  law  is  inter- 
nationally conclusive,  even  if  in  error.  In  practice,  however,  govern- 
ments have  assumed  an  extended  right  to  protest  diplomatically  against 
the  judgments  of  foreign  courts  affecting  their  citizens,  when  they 
consider  the  decisions  grossly  unjust.    It  may  be  added  that  the  earlier 

'  Supra,  p.  99. 

2  Mr.  Evarts,  Sec'y  of  State,  to  Mr.  Foster,  April  19,  1879,  Moore's  Dig.  VI,  696 
(collusive  judgment);  Bronner  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3134; 
Barron  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  ibid.  2525,  Hale's  Rep.  164;  Idler  (U.  S.)  v. 
Venezuela,  Dec.  5,  1885,  ibid.  3491,  3510.  See  also  Comegys  v.  Vasse,  1  Peters, 
193. 

^  Dana's  Wheaton,  §§  391-393,  quoting  Grotius,  Bynkershoek  and  Vattel. 

*  Dana's  Wheaton,  §  .392. 

'  Grotius,  Bk.  Ill,  ch.  7,  §  84;  Vattel,  II,  ch.  18,  §  350;  Kluber,  2nd  ed.,  1874,  §  57; 
Fiore,  Dr.  int.  pub.,  Antoine's  trans.,  §§  404-405;  G.  F.  de  Martens,  Prdcis  du  droit 
des  gens,  §94;  Pradier-Fod6re,  I,  §403;  Pomeroy,  Boston  ed.  (1886),  by  Woolsey, 
§  205;  Baty,  1909  ed.,  77  et  seq. 


WHEN   UNJUST  JUDGMENT  INTERNATIONALLY   BINDING  341 

writers  did  not  make  any  clear  distinction  between  a  notoriously  unjust 
decision  and  a  flagrant  denial  of  justice.^ 

If  the  courts  have  mahciously  misapplied  their  municipal  law,  or 
denied  a  foreigner  the  benefit  of  due  process  of  law  in  any  stage  of 
the  proceedings,  the  reclamation  would  be  founded  upon  a  denial  of 
justice,  as  mentioned  above.  It  is  a  fundamental  principle  of  the  con- 
flict of  laws  that  a  foreign  judgment  is  always  impeachable  for  want 
of  jurisdiction  of  the  person  of  the  defendant  or  of  the  subject-matter.^ 
Apart  from  this  ground  (except  where  the  judgment  was  obtained  by 
fraud), ^  courts  have  httle  power  to  impeach  a  foreign  judgment.*  As 
already  observed,  however,  the  executive  branch  of  the  government 
has  not  hesitated  to  deny  validity  to  the  judgment  of  the  highest  court 
of  a  foreign  state  when  the  judgment  appeared  manifestly  unjust. 
The  question  becomes  exceedingly  delicate  when  the  judgment  alleged 
to  be  unjust  was  reached  by  the  observance  of  the  regular  forms  of 
procedure.  A  diplomatic  claim  under  these  circumstances  is  in  effect 
an  impeachment  of  the  sovereignty  of  a  foreign  state,^  and  on  this 
ground  the  countries  of  Latin-America  have  often  protested  against 
such  claims.  It  may  be  said  that  before  an  international  claim  ought 
to  be  considered  well-founded  it  should  be  shown  that  the  decision  was 
so  palpably  unjust  that  the  good  faith  of  the  court  is  open  to  suspicion. 
The  diflficulty  in  actual  practice,  as  remarked  in  the  case  of  denial  of 
justice,  is  that  the  claimant  government  assumes  the  right  to  determine 
for  itself  whether  the  judgment  is  sufficiently  unjust  to  warrant  dip- 
lomatic interposition.® 

^  Pradier-Foder6,  note  to  his  edition  of  Vattel,  II.  ch.  18,  §  351  and  Verge's  note  to 
De  Martens  Precis,  II,  §  257,  p.  193. 

2  23  Cyc.  1576.  See  also  Idler  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb. 
3491,  3511;  Flutie  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  38,  41. 

3  Abouloff  V.  Oppenheimer  (1882),  10  Q.  B.  Div.  295;  Vadala  v.  Lawes  (1890),  25 
Q.  B.  Div.  310.    See  also  23  Cyc.  1589. 

^Piggott,  Foreign  judgments,  I,  356  (1908  ed.);  32  Canada  Law  Times  (1912), 
968-970.  The  enforcement  of  a  foreign  judgment  generally  depends  on  treaty  or 
comity. 

5  Elihu  Root  in  3  A.  J.  I.  L.  (1909),  529-536. 

8  See  Sefior  Mariscal's  able  exposition  in  the  Schooner  Rebecca  case.  Sen.  Doc.  328, 
5l8t  Cong.,  1st  sess.,  43  et  seq.  A  criticism  of  art.  11  of  the  Venezuelan  law  of  1903 
and  the  Salvadorean  law  of  May  10,  1910,  to  the  effect  that  "notorious  injustice," 
as  expressed  in  those  statutes,  is  not  truly  a  valid  ground  of  international  reclamation 


342  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

The  Department  of  State  and  arbitral  tribunals  have  rejected  the 
plea  of  res  adjudicata  advanced  by  defendant  governments  in  support 
of  the  finality  of  the  judgments  of  their  courts.  Thus  Secretary  oi 
State  Bayard  in  1887  declared: 

''This  Department  has  contested  and  denied  the  doctrine  that  a 
government  may  set  up  the  judgment  of  one  of  its  own  courts  as  a 
bar  to  an  international  claim,  when  such  judgment  is  shown  to  have 
been  unjust  or  in  violation  of  the  principles  of  international  law."  ' 

When  a  court  presumes  to  pass  upon  questions  of  international  law 
there  is  little  doubt  that  foreign  governments  need  not  acquiesce  in 
the  judgments  of  such  courts  when  they  misapply  or  violate  the  prin- 
ciples of  international  law.^  This  rule  has  often  been  illustrated  by 
the  institution  of  international  claims  against  the  decisions  of  prize 
courts,  which  have  either  been  diplomatically  settled  or  submitted  to 
arbitration.^  While  the  decisions  of  prize  courts  acting  in  rem  bind 
the  parties,  so  far  as  concerns  the  particular  litigation,  they  may  be 
contested  by  the  government  of  the  party  which  feels  aggrieved.'*    The 

was  published  by  A.  de  Busschere,  the  Belgian  jurist,  in  3  Rev.  de  derecho  y  legis- 
lacion  (Caracas,  Oct.,  1913),  pp.  3-6.  European  governments  have  taken  quite  the 
opposite  view. 

1  Mr.  Bayard  to  the  President,  Feb.  26,  1887,  Moore's  Dig.  VI,  667.  See  also  Mr. 
Bayard  to  Mr.  Hall,  Nov.  29,  1886,  For.  Rel.,  1887,  p.  81,  Moore's  Dig.  VI,  268. 
See  also  ibid.  691.  The  Department  has  never  consented  to  the  doctrine  that  a  gov- 
ernment could  make  the  judgments  of  its  courts  internationally  binding.  See  also 
Rowland  (U.  S.)  v.  Mexico,  Apr.  11,  1839,  Moore's  Arb.  3227;  Mather  and  Glover 
(U.  S.)  V.  Mexico,  July  4,  1868,  ibid.  3231. 

^  Martens,  Precis,  §  97. 

3  Dana's  Wheaton,  §§  392-397;  3  Wharton,  §  329a;  Oppenheim,  II,  §  557;  The 
Betsey,  Furlong  (U.  S.)  v.  Great  Britain,  Nov.  19,  1794,  Moore's  Arb.  3160-3209, 
especially  Pinckney's  opinion  at  3180,  and  other  cases  under  the  Jay  treaty.  The 
British- American  commission  under  treaty  of  May  8,  1871  reviewed  numerous  prize 
decisions  of  the  U.  S.  Supreme  Court,  and  reversed  several  of  them  by  awarding  in- 
demnities to  the  claimants:  e.  g.,  The  Hiawatha,  2  Black,  635,  Moore's  Arb.  3902; 
The  Circassian,  2  Wall.  135,  Moore's  Arb.  3911;  The  Springbok,  5  Wall.  1,  Moore's 
Arb.  3928;  The  Sir  William  Peel,  5  Wall.  517,  Moore's  Arb.  3935;  The  Volant,  5  Wall. 
179,  Moore's  Arb.  3950;  The  Science,  5  Wall.  178,  Moore's  Arb.  39.50.  See  also  The 
Orierd  (U.  S.)  v.  Mexico,  Apr.  11,  1839,  Moore's  Arb.  3229;  Felix  (U.  S.)  r.  Mexico, 
Mar.  3,  1849,  ibid.  2800-2815;  Henry  Wheaton  in  20  St.  Pap.  871-872;  Danish  In- 
demnity, Moore's  Arb.  4550  and  4556-4557.  See  also  Lapradelle  and  Politis,  Recueil, 
I,  96-98  and  499. 

*  3  Wharton,  193. 


WHEN    UNJUST   JUDGMENT    INTERNATIONALLY    BINDING  343 

international  prize  court  planned  by  the  Second  Hague  Conference 
was  to  hear  appeals  from  national  prize  courts,  and  was  intended  to 
take  out  of  the  channels  of  diplomacy  the  complaints  which  are  so 
frequently  directed  against  the  decisions  of  these  courts.  ^ 

It  will  be  noted  hereafter,  that  within  the  terms  of  the  protocol 
establishing  it,  an  international  tribunal  is  superior  to  the  local  courts,- 
and  that  an  arbitral  court  adjudicating  claims  between  two  nations 
will  make  its  award  independently  of  the  previous  decisions  of  the 
local  courts,^  unless  its  jurisdiction  is  expressly  limited/ 

'  In  theory,  the  decision  of  the  highest  municipal  court  is  not  reversed  by  the  in- 
ternational tribunal,  but  the  whole  question  of  the  international  responsibilitj'  of 
the  state  is  resubmitted.  This  limitation  upon  the  proposed  jurisdiction  of  the 
International  Prize  Court  was  contained  in  an  additional  agreement  of  Sept.  9,  1910, 
between  the  U.  S.  and  Great  Britain  and  other  powers. 

2  Infra,  p.  806.  See  Selwyn  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  322 
and  citation  of  authorities,  pp.  324-325. 

'  The  Phare  (France)  v.  Nicaragua,  Moore's  Arb.  4871. 

*  Le  More  (France)  v.  U.  S.,  Jan.  15,  1880,  ibid.  3232. 


CHAPTER  IX 

RELATION  BETWEEN  STATES 

§  131.  Mutual  Concessions  by  States. 

Having  considered  the  legal  relation  subsisting  between  the  state 
and  its  citizen  abroad  and  between  a  particular  state  and  resident 
aliens,  the  ground  has  been  laid  for  a  consideration  of  the  relationship 
between  the  two  states  themselves,  the  national  state  and  the  state 
of  residence. 

It  has  been  observed  ^  that  by  the  weight  of  authority  international 
law  is  obligatory  upon  states  only,  and  that  the  individual  is  not  the 
subject  of  international  rights  or  duties,  either  in  the  sense  of  possess- 
ing an  independent  power  to  enforce  his  rights  internationally  or  of 
being  internationally  liable  for  a  failure  to  perform  his  duties.  His 
rights  and  duties  arise  from  municipal  subjection  to  the  personal  sov- 
ereignty of  his  home  state  and  to  the  territorial  sovereignty  of  the  state 
of  residence.^  The  latter's  municipal  law  and  administration  in  its 
application  to  the  alien  must  conform  with  that  indefinite  standard  of 
civilized  justice  created  by  international  law  and  custom,  subject  to 
international  responsibility  to  the  alien's  home  state.  Hence  the  citizen 
abroad,  though  deriving  his  rights  from  municipal  law,  brings  about 
international  legal  relations  of  a  complicated  character  between  the 
states  exercising  control  over  him. 

Membership  in  the  international  community  is  predicated,  as  has 
been  observed,  upon  the  possession  by  a  state  of  certain  legal  charac- 
teristics, notably  personal  sovereignty  over  its  subjects,  and  territorial 
independence  or  jurisdiction.^  The  control  which,  by  virtue  of  its 
sovereignty,  the  state  possesses  over  its  national  at  home  and  abroad, 
and  that  which,  by  virtue  of  its  territorial  independence,  it  possesses 

'  Supra,  §  9. 

*  Heilborn,  System,  75  et  seq.;  Despagnet,  4th  ed.,  §  316. 

*Suj)ra,  pp.  21,25. 

344 


MUTUAL   CONCESSIONS   BY    STATES  345 

over  all  persons  on  its  territory  would,  if  unconditionally  and  strictly 
exercised,  constitute  mutually  conflicting  and  irreconcilable  forces. 
As  a  matter  of  fact,  the  impossibility  of  a  state  existing  in  rigid  isola- 
tion, and  the  necessity  of  entering  into  relations  with  other  states  in 
the  international  coromunity,  has  compelled  on  the  part  of  each  state 
certain  restrictions  upon  its  freedom  of  action  and  a  modification  of 
any  theoretical  claim  it  may  have  had  to  absolute  authority  over  its 
subjects  abroad  or  over  all  the  inhabitants  of  its  territory. 

It  has  already  been  observed  that  the  bond  which  exists  between 
the  state  and  its  citizen  is  not  severed  by  his  departure  from  the  na- 
tional territory,  but  that  the  state,  for  most  practical  purposes,  yields 
control  over  its  citizen  abroad  to  the  state  in  which  he  resides.^  This 
is  the  case  at  least  among  countries  of  advanced  civilization.  The 
territorial  independence  by  virtue  of  which  the  state  prescribes  the 
rights  and  duties  of  persons  within  its  territory,  is  itself,  however, 
limited  in  two  ways:  indirectly,  by  the  obligation,  imposed  by  interna- 
tional law,  of  not  permitting  its  municipal  law  and  administration  to 
fall  below  the  indefinite  standard  set  by  international  law  and  custom, 
a  result  which,  as  to  substantive  law,  practically  never  occurs  in  coun- 
tries not  subject  to  extraterritoriality;  and  directly,  by  conceding  or 
being  compelled  to  concede  to  foreign  states  certain  rights,  e.  g.,  the 
immunity  of  foreign  sovereigns  and  public  vessels  from  the  territorial 
jurisdiction,  the  right  of  foreign  consuls  to  exercise  a  limited  jurisdiction 
over  their  national  merchant  vessels,  the  application  of  his  national  law 
to  many  private  legal  relations  of  the  alien,  and  other  rights  and  im- 
munities which  have  become  customary.^  The  citizen  abroad  is  thus 
subject  to  a  certain  control  of  both  the  personal  and  the  territorial 
sovereign,  each  requiring  forbearances  on  the  part  of  the  other.  Personal 
sovereignty  or  control  and  territorial  independence  or  jurisdiction, 
therefore,  are  not  absolute,  but  relative,  terms  and  are  mutually  com- 
plementary with  respect  to  citizens  abroad. 

The  numerous  spheres  in  which  custom  has  instituted  derogations 

^  Supra,  p.  21;  Hall,  W.  E.,  Foreign  powers  and  jurisdiction  of  the  British 
Crown,  Oxford,  1894,  p.  2  et  seq. 

^  On  the  limitations  upon  independence,  see  Pillet,  A.,  Recherches  sur  les  droits 
fondamentaux  des  ^tats,  Paris,  1899,  p.  13;  and  Rougier  in  17  R.  G.  D.  I.  P.  (1910), 
480. 


346  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

from  the  fullness  of  local  jurisdiction  in  favor  of  foreigners,  foreign  consuls 
and  foreign  property,  such  as  ships,  are  traceable  not  merely  to  comity 
but  to  a  mutual  recognition  that  in  certain  matters  the  interests  of 
individuals  are  more  satisfactorily  protected  by  giving  jurisdiction  or 
other  powers  to  their  national  sovereign,  in  other  words,  the  indirect 
operation  of  the  protective  function  has  resulted  in  certain  derogations 
from  complete  territorial  jurisdiction.  In  countries  in  which  extrater- 
ritoriality prevails,  these  derogations  assume  wide  proportions,  and  are 
the  outgrowth  of  compulsory  concession  rather  than  voluntary  grant 
on  a  basis  of  reciprocity. 

§  132.  Diplomatic  Protection  a  Limitation  on  Territorial  Jurisdiction. 

In  the  mutual  relation  of  states  in  international  intercourse,  the 
home  state  of  a  citizen  abroad  yields  the  exercise  of  its  personal  control 
or  sovereignty  over  its  citizen  in  favor  of  the  territorial  sovereignty 
of  the  state  of  residence,  on  the  condition  that  the  latter's  system  of 
law  and  administration  is  in  its  application  to  aliens  within  the  standards 
prescribed  by  international  law  and  recognized  custom.    If  its  laws  are 

/  arbitrarily  unreasonable  and  out  of  harmony  with  the  standard  of 
civilized  states,  or  if  the  administration  of  the  laws  transgresses  the  pre- 
scriptions of  civilized  justice,  or  if  in  any  respect  there  is  an  abuse  of  the 
rights  of  territorial  jurisdiction  as  provided  by  treaties  or  established  cus- 
tom, the  personal  sovereignty  of  the  home  state  reasserts  itself  and 
emerges  in  the  form  of  diplomatic  protection.  This  potential  right, 
which  the  home  state  always  reserves,  acts  as  a  check  upon  the  state  of 
residence  and  as  a  corrective  against  the  excessive  or  abusive  appUcation 
of  the  territorial  jurisdiction.  In  its  operation,  it  prevents  invasions  of 
the  rights  of  citizens  abroad  or  exacts  reparation  for  injuries  or  unlawful 
oppression  which  they  may  have  suffered.  In  states  of  the  European 
type  there  is  less  occasion  for  the  employment  of  this  protective  right 
than  in  states  of  less  stable  organization.  The  application  of  the  right 
of  diplomatic  protection  increases  in  rigor  in  direct  ratio  with  the  weak- 

/  ness  of  the  local  protection  accorded  by  the  state  of  residence.  In  coun- 
tries like  Turkey  and  China,  this  protective  right  has  actually  assumed 
the  form  of  foreign  jurisdiction.  In  the  absence  of  any  central  authority 
Oyer  states  having  power  to  enforce  the  principles  of  international  law, 


f 


LIMITATION    ON    TEKRITOUIAL   JURISDICTION  347 

the  right  of  diplomatic  protection  has  self-help  for  its  sanction,  and  as~^ 
it  is  most  often  resorted  to  by  strong  against  weak  states,  it  is  readily 
apparent  how  the  rights  of  the  weaker  states  have  been  liable  to  abuse;  so 
that  the  complaints  of  Calvo,  Pradier-Fodere,  Seijas,  Lisboa  and  others,^ 
on  behalf  of  the  Latin-American  states,  are  undoubtedly,  in  large  degree, 
justified.  The  undue  enforcement  of  the  right  of  protection  has  often 
served  to  give  aliens  who  are  the  subjects  of  strong  states,  when  resident 
in  weak  states,  a  privileged  position,  not  enjoyed  by  natives  or  thd 
nationals  of  weak  countries. 

All  civilized  states  admit  that  in  order  to  live  in  the  society  of  states, 
they  must  yield  some  share  of  their  absolute  liberty  of  action  and  that 
their  rights  must  be  reconciled  with  the  reciprocal  rights  of  other  states. 
Various  forces  thus  interact  to  bring  about  the  existing  rules  of  inter- 
national intercourse.  Among  these  mutual  concessions,  the  one  of 
present  interest  is  the  fact  that  the  territorial  sovereignty  or  jurisdic- 
tion of  a  state  has  to  be  reconciled  with  the  right  of  other  states  to 
protect  their  nationals  abroad,  an  outgrowth  of  principle  and  practice, 
rather  than  the  subject  of  formal  written  admission. 


PART  II 

THE  EXERCISE  OF  DIPLOMATIC  PROTECTION 

CHAPTER  I 

NATURE,  BASIS  AND  THEORY  OF  PROTECTION 

§  133.  Fundamental  Principles. 

The  study  which  has  been  made  of  the  relation  between  the  state 
and  its  citizen,  of  the  position  of  aliens,  of  the  municipal  and  the  inter- 
national responsibility  of  the  state,  and  of  the  relation  between  the 
protecting  state  and  the  state  of  residence  warrants  a  reconsideration 
of  these  matters  in  their  relation  to  the  nature,  the  basis  and  the  ex- 
ercise of  the  right  of  diplomatic  protection. 

Each  state  in  the  international  community  is  presumed  to  extend 
complete  protection  to  the  life,  liberty  and  property  of  all  individuals 
within  its  jurisdiction.^  If  it  fails  in  this  duty  toward  its  own  citizens, 
it  is  of  no  international  concern.-  If  it  fails  in  this  duty  toward  an 
alien,  responsibility  is  incurred  to  the  state  of  which  he  is  a  citizen, 
and  international  law  authorizes  the  national  state  to  exact  reparation 
for  the  injury  sustained  by  its  citizen.  The  foreigner  in  entering  a 
country  tacitly  undertakes  to  accept  the  laws  and  institutions  which 
the  inhabitants  of  the  country  find  suitable  to  themselves.  By  be- 
coming a  resident,  he  undertakes  the  obligation  of  obedience  to  the 
laws,  and  assumes  a  certain  relationship  to  the  state  of  residence  which 
has  been  popularly  characterized  as  "temporary  allegiance."  This 
involves  both  rights  and  duties,  although  with  respect  to  both,  there 

Morse,  Citizenship,  Boston,  1881,  §4. 
^  Unless  the  state  deviates  so  grossly  from  the  paths  of  civilized  administration  and 
jjuBtice  that  intervention  on  the  ground  of  hmnanity  is  justified.    Supra,  p.  14. 

349 


350  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

is  usually  a  measure  of  difference  between  the  transient  and  the  domi- 
ciled alien.  If  the  alien  receives  the  benefit  of  the  same  laws,  adminis- 
tration, protection  and  means  of  redress  for  injuries  which  the  state 
accords  to  its  own  subjects,  the  national  government  of  the  alien  has 
no  ground  to  complain  or  interpose  in  his  behalf,  provided  that  the 
system  of  municipal  law,  administration  and  protection  applied  to 
citizens  meets  the  recognized  standards  of  civilized  justice.  Foreigners 
are  left  to  the  territorial  jurisdiction  of  the  state  of  residence  for  the 
measure  of  their  rights  and  the  redress  of  their  grievances  on  the  as- 
sumption that  justice  will  be  applied  to  them,  according  to  a  civilized 
system  of  law  and  administration,  with  integrity  and  impartiality. 
An  allegation  of  a  denial  of  justice,  the  customary  ground  of  an  inter- 
national claim,  rests  upon  an  alleged  departure  from  this  standard, 
either  in  the  law  itself  or  in  its  administration.  It  is  difficult  to  estab- 
lish the  exact  measure  of  this  standard  of  civilized  justice  except  by 
the  general  practice  of  the  more  advanced  states.  International  pecun- 
iary claims  are  so  common  because,  as  in  the  case  of  political  claims, 
the  justice  which  a  state  demands  for  its  nationals  is  not  measurable 
by  definite  rules.  Nevertheless,  the  general  acceptance  of  certain 
fundamental  principles,  a  certain  minimum  of  customary  requirements 
incorporated  in  the  law  and  procedure  of  the  states  of  European  civi- 
lization, and  a  long-extended  experience  of  adjusting  international 
claims,  particularly  by  arbitration,  have  developed  sufficiently  definite 
rules  of  conduct  for  the  establishment  of  a  satisfactory  international 
standard  of  justice,  to  which  the  rights  of  aliens  may  ultimately  be 
referred.  Diplomatic  interposition  in  behalf  of  aliens  merely  because 
the  local  laws  and  procedure  are  different  from  those  of  the  protecting 
state,  without  proving  that  the  application  of  the  law  in  a  given  case 
falls  below  the  international  standard  of  civilized  justice,  is  a  practice 
which  has  resulted  on  numerous  occasions  in  securing  for  aliens  in  some 
of  the  weaker  states  of  the  world  a  privileged  position  as  against  na- 
tionals, a  condition  against  which  some  of  the  Latin-American  countries 
and  their  publicists  have,  at  times,  with  some  justice,  protested.  The 
alien  in  these  cases  instead  of  constituting  an  addition  to  the  national 
-^^alth  and  resources,  has  become  a  liability  and  a  detriment  to  the 
state. 


THEORY   OF   THE   STATE's   PROTECTION  351 

§  134.  Theory  of  the  State's  Protection. 

The  interest  of  the  state  in  protecting  its  citizen  abroad  is  justified 
upon  the  theory  formulated  by  Vattel;  "Whoever  uses  a  citizen  ill, 
indirectly  offends  the  state,  which  is  bound  to  protect  this  citizen;  and 
the  sovereign  of  the  latter  should  avenge  his  wrongs,  punish  the  ag- 
gressor, and,  if  possible,  oblige  him  to  make  full  reparation;  since  other- 
wise the  citizen  would  not  obtain  the  great  end  of  the  civil  associa- 
tion, which  is,  safety."  ^  The  indirect  injury  which  the  state  sustains 
by  an  injury  to  one  of  its  citizens  warrants  bringing  into  operation  the 
state's  protective  machinery. - 

This  principle,   however,   requires  modification   anJ    amplification,  j 

for  it  does  noFTuIly  explain  the  action  of  the  state.    In  the  first  place^^  ^^- 
reparation  is  demanded  only  for  such  injuries  as  the  state  in  its  discre-  \\ 
tion  deems  a  justification  for  diplomatic  protection.     Factors  which    ^ 
enter  into  consideration  in  determining  the  state's  interposition  are 
the  seriousness  of  the  offense,  the  indignity  to  the  nation,  and  the 
political  expediency  of  regarding  the  private  injury  as  a  public  wrong 
to  be  repaired  by  national  action — in  short,  the  interests  of  the  people 
as  a  whole  as  against  those  of  the  citizen  receive  first  consideration 
before  state  action  is  initiated.^ 

In_jth£^  second  place,  not  every  injury  warrants  immediate  inter- 
position by  the  state.  It  is  only  when  the  citizen  has^  suffered  flagrant 
injustic^~orimattreatment  by  or  at  the  direction  of  an  authority  of  the 
state  of  residence,  that  his  national  government  is  warranted  in  taking 
immediate  measures  of  repression.^  If  the  injury  is  received  at  the 
hands  of  individuals  or  minor  officials,  who  cannot  be  regarded  as 
representing  the  government,  the  individual  must  in  first  instance  be 
remitted  to  his  local  judicial  remedies,  and  only  in  the  event  of  a.  denial 

1  Vattel,  Chitty-Ingraham  ed.,  Phila.,  1855,  Bk.  II,  ch.  VI,  §  71. 

^See,  e.  g.  Philliraore,  3rd  ed.,  II,  4;  Morse,  Citizenship,  XII  and  60,  61;  Pradier- 
Fodere,  I,  §  402;  Bello  and  Liszt  cited  in  For.  Rel.,  1899,  31-40;  Mr.  Root,  Sec'y 
of  State,  to  the  Persian  minister,  Nov.  7,  1906,  For.  Rel.,  1907,  942.  See  also  Amer. 
St.  Pap.  IV,  718;  Annals,  1.5th  Cong.,  1st  sess.,  282;  Selwyn  (Gt.  Brit.)  v.  Venezuela, 
Feb.  13,  May  7,  1903,  Ralston,  322.  The  idea  that  the  nation  will  avenge  the  wrongs 
done  to  its  citizens  goes  back  to  the  earliest  times.    See  Morse,  op.  cit.,  110. 

'  See,  e.  g.,  Fiore,  Nouveau  dr.  int.  pub:  (Antoine's  trans.),  §  646,  citing  Hefifter, 
§  59  and  Phillimore,  II,  ch.  2;  Lomonaco,  217,  citing  Grotius. 

*  Hall,  6th  ed.,  273;  PhiUimore,  3rd  ed.,  II,  4. 


o52  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

of  justice,  as  that  terra  is  understood  in  international  law,  may  the 
state  properly  interpose  in  his  behalf. 

In  the  third  place,  although  the  state  in  prosecuting  the  offense 
committed  against  its  citizen  is  presumed  to  avenge  and  seek  compen- 
sation for  the  injury  to  its  national  welfare  and  dignity,  an  injury  quite 
independent  of  that  sustained  by  its  citizen,  it  nevertheless  happens, 
in  practice,  that  the  largest  proportion  of  claims  are  dropped  at  the 
moment  the  citizen  changes  his  nationality  or  assigns  his  claim  to  the 
subject  of  another  state.  This  result  has  been  established  by  numer- 
ous arbitral  decisions  and  by  the  practice  of  Foreign  Offices.^  If  it  were 
merely  the  injury  to  the  welfare  or  dignity  of  the  nation  for  which 
compensation  is  sought,  the  subsequent  act  of  the  citizen  would  hardly 
lessen  the  injury,  or  weaken  the  right  or  power  of  the  state  to  exact 
reparation.  As  a  matter  of  fact,  Vattel's  theory  of  the  indirect  injury 
to  the  state  in  the  person  of  its  citizen,  merely  explains  the  initial  action 
of  the  state  in  bringing  its  protective  machinery  into  operation.  The 
citizen  may  well  relieve  the  state  of  further  interest  in  his  case  by 
changing  the  nationality  of  the  claim  or  of  the  claimant.  While  the 
injury  to  the  state  and  the  injury  to  the  citizens  are  independent  wrongs, 
the  action  of  the  state  in  demanding  compensation  is  in  large  degree 
dependent  upon  the  subsequent  conduct  of  the  citizen  in  supporting 
the  title  and  right  of  his  government  to  interpose  in  his  behalf.  The 
circumstance  must  not,  however,  be  overlooked,  that  injuries  inflicted 
upon  certain  officials  representative  of  the  government  or  upon  public 
vessels  or  other  public  property,  give  rise  to  national  offenses  only, 
to  the  exclusion  of  private  claims,  and  that  certain  classes  of  injuries 
to  individuals,  when  deemed  to  involve  affronts  to  the  nation,  survive 
any  assignment  or  settlement  by  the  private  claimant.  ^ 

§  134a.  Diplomatic  Protection  an  Extraordinary  Legal  Remedy. 
The  theory  that  the  indirect  injury  to  the  state  in  the  person  of  its 

'  Infra,  §  306.  See  particularly  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  17,  1903, 
44(>-447.  This  principle  of  arbitral  decisions  may  be  explained  by  the  fact  that 
protocols  practically  always  grant  jurisdiction  over  injuries  to  "subjects"  or  "citi- 
zens' and  not  to  "  the  dignity  of  the  nation."  If  a  claimant  has  ceased  to  be  a  citizen 
at  the  time  his  claim  is  presented,  jurisdiction  is  denied. 

2  Infra,  §  142. 


BASIS   OF   THE    PUBLIC    ACTION   OF   THE    STATE  353 

citizen  justifies  diplomatic  interposition  does  not,  it  is  obvious,  fully 
explain  the  state's  action.  Diplomatic  protection  may  more  properly 
be  considered  as  an  extraordinary  legal  remedy  granted  to  the  citizen, 
within  the  discretion  of  the  state,  under  certain  circumstances  in  har- 
mony with  the  public  interests  of  the  state,  its  relations  with  other 
states,  and  the  rights  and  equities  of  the  citizen. 

It  is  to  be  noted  that  the  state  may  be  injured  in  two  ways:  (1)  di- 
rectly, by  violation  of  the  rights  affecting  the  collectivity  or  people 
as  a  whole;  and  (2)  indirectly,  by  violation  of  the  rights  of  its  citizens. 
It  will  be  seen  hereafter  ^  that  injuries  of  the  latter  class  which  involve 
specific  affronts  to  the  nation,  cannot  be  extinguished  by  private  settle- 
ment, but  that  they  survive  restitution  or  compensation  to  the  individ- 
ual. On  the  other  hand,  if  the  injury  involves  no  element  of  national 
insult,  the  restoration  of  the  individual  to  his  rights  by  the  institutions 
or  authorities  of  the  defendant  state  annuls  any  further  interest  of 
his  own  government.  The  individual  has  in  fact  sustained  no  "injury" 
in  international  law,  until  the  state  of  residence  or  its  authorities  have 
in  some  way  connected  themselves  with  the  original  act  or  have  de- 
clined to  afford  him  legal  means  of  redress. 

§  135.  Basis  of  the  Public  Action  of  the  State. 

The  action  of  the  state  in  exercising  the  right  of  diplomatic  pro- 
tection, being  based  upon  its  independent  claim  against  other  states 
to  have  its  nationals  treated  in  accordance  with  the  rules  of  inter- 
national law,  has  been  founded  by  various  writers  upon  its  right  of 
self-preservation,^  the  right  of  equality,^  and  the  right  of  intercourse.^ 
While  it  may  be  true  that  the  habitual  unredressed  violation  of  the 
rights  of  its  citizens  abroad  would  weaken  the  state  both  materially 
and  in  prestige,  and  to  that  extent,  impair  its  integrity  and  its  power 
among  nations,  the  injuries  to  the  subjects  of  a  given  state  are  never 
so  habitual,  so  numerous  or  so  widespread  as  actually  to  endanger  the 
safety  of  the  state.    It  seems  preferable  to  consider  the  state's  action 

» Infra,  §  142. 

2  Hall,  6th  ed.,  273  et  seq.;  Hall,  Foreign  powers  and  jurisdiction,  etc.,  §  2;  Rivier, 
Principes,  I,  269;  Despagnet,  4th  ed.,  1910,  §  172. 

*  Pomeroy,  Lectures,  Woolsey's  ed.,  Boston,  1886,  §  205  et  seq. 

*  Oppenheim,  I,  §§  142,  319. 


354  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

as  a  sanction  for  the  right  of  international  intercourse  between  states 
and  individuals,  according  to  the  standard  of  conduct  and  treatment 
recognized  as  proper  and  lawful  by  international  law  and  practice. 

§  136.  Protection  in  Operation. 

The  right  of  protection  is,  as  already  observed,  a  limitation  upon 
the  right  of  jurisdiction.  The  former  cannot  oust  the  latter — except 
by  treaty  ^ — but  has  the  power  to  require  that  as  to  aliens  it  shall  be 
exercised  in  a  regular,  legal,  just  and  impartial  manner.^  The  right 
of  protection  which  every  state  possesses  is  correlative  to  its  obliga- 
tion to  accord  foreigners  a  measure  of  treatment  satisfying  the  require- 
ments of  international  law  and  relevant  treaties,  and  to  its  responsi- 
bility for  failure  to  accomplish  this  duty.'^  Diplomatic  protection  is 
in  its  nature  an  international  proceeding,  constituting  "an  appeal  by 
nation  to  nation  for  the  performance  of  the  obligations  of  the  one  to  the 
other,  growing  out  of  their  mutual  rights  and  duties."  ^  This  right  of 
the  state  is,  as  an  international  phenomenon,  a  manifestation  of  its 
power  over  the  individuals  under  its  allegiance  to  prevent  or  repress 
on  the  part  of  other  states  any  invasion  of  their  rights  or  any  preten- 
sion not  finding  its  basis  in  international  law.^  As  no  municipal  statutes 
specify  the  circumstances  and  limits  within  which  this  right  of  protec- 
tion shall  be  exercised,  each  government  determines  for  itself  the  justi- 
fication, expediency  and  manner  of  making  the  international  appeal. 
The  merits  of  its  right  to  exercise  diplomatic  protection  may,  however, 
be  referred  to  an  independent,  if  not  altogether  certain,  standard — 
the  standard  of  civilized  conduct  toward  aliens  recognized  as  proper 
by  international  law. 

'  /.  e.,  in  countries  where  extraterritorial  rights  are  exercised. 
2  Pomeroy,  op.  ciL,  §§  205-206. 

^  Oppenheim,  I,  §  142;  Hall,  6th  ed.,  273.    Hall's  statement  is  concise  and  thought- 
ful. 

*  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Caamano,  Mar.  19,  1890,  Moore's  Dig.  VI,  256. 
^  Hoilborn,  System,  64  et  seq. 


CHAPTER  II 

RELATION   BETWEEN    THE   PRIVATE   AND   THE   PUBLIC 

INJURY 

§  137.  Method  of  Presenting  a  Private  Claim. 

It  has  been  noted  that  governments  are  to  a  certain  extent  subject 
to  suit  at  the  hands  of  an  aUen  in  their  own  municipal  courts.  This 
right  of  suing  the  state  is  more  general  in  most  foreign  countries  than 
in  the  United  States.  When  local  means  of  redress  have  been  exhausted 
in  a  vain  effort  to  obtain  justice  and  the  international  responsibility 
of  the  state  is  invoked,  the  alien's  only  recourse  to  obtain  satisfaction 
is  through  the  interposition  of  his  own  government. 

In  1874  Congress  adopted  the  rule  that  it  would  not  consider  the 
claims  of  aliens  against  the  United  States  unless  presented  through 
the  Department  of  State.  The  Department  itself  has  had  frequent 
occasion  to  inform  alien  claimants  that  it  "refuses  to  entertain  appli- 
cations or  to  receive  claims  from  aliens  except  through  a  responsible 
presentation  by  the  regularly  accredited  representative  of  their  govern- 
ment." ^  The  government  must  assume  responsibility  for  the  pres- 
entation of  claims.^ 

A  mere  transmission  of  the  claim  by  the  diplomatic  representative 
at  the  request  of  the  claimant  without  an  indication  of  the  approval, 
support  and  authorization  of  the  foreign  government  will  not  satisfy 
this  requirement.^  The  representative  may,  however,  without  making 
a  claim,  call  attention  unofficially  and  on  his  own  responsibility,  to  a 
past  or  impending  injustice  to  one  of  his  nationals  and  his  note  will 
receive  due  consideration. 

1  Magoon's  Report,  338,  340  quoting  Sec'y  of  State  Fish  to  Mr,  Lawrence,  Apr.  22, 
1874. 

2  U.  S.  V.  Diekelman,  92  U.  S.  520;  Moore's  Dig.  VI,  §  970. 

» Mr.  Seward,  Sec'y  of  State,  to  Count  Wydenbruck,  Nov.  28,  1866,  Dipl.  Cor. 
1866,  I,  691.  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Baron  de  Fava,  June  21,  1884, 
Moore's  Dig.  VI,  608. 

355 


356  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

§  138.  Citizen's  Title  to  Protection  not  a  Legal  Right.    An  Extraor- 
dinary Legal  Remedy. 

Whatever  rights  the  citizen  may  have  to  diplomatic  redress  are  as 
against  his  own,  not  the  foreign  government.  It  is  hardly  correct, 
however,  to  speak  of  the  citizen's  power  to  invoke  the  diplomatic  pro- 
tection of  the  government  as  a  "right"  of  protection.  As  will  be  ob- 
served presently,  his  call  upon  the  government's  interposition  is  ad- 
dressed to  its  discretion.  At  best,  therefore,  it  is  an  imperfect  right, 
in  the  sense  of  VatteV  that  a  right  is  always  imperfect  when  the  cor- 
responding obligation  depends  on  the  judgment  of  another.  Being 
devoid  of  any  compulsion,  it  resolves  itself  merely  into  a  privilege  to 
ask  for  protection.  Such  duty  of  protection  as  the  government  may 
be  assumed  to  owe  to  the  citizen  in  such  cases  is  a  political  and  not  a 
legal  one,  responsibility  for  the  proper  execution  of  which  is  incurred 
to  the  people  as  a  whole,  and  not  to  the  citizen  as  an  individual. 

Assuming  that  the  citizen  has  a  claim  to  indemnity  from  a  foreign 
government,  the  property  right  therein  involved  exists  in  full  force 
as  a  chose  in  action.^  The  power  to  enforce  the  right  is  suspended  not 
because  there  is  no  remedy,^  but  because  there  is  no  forum  having 
jurisdiction  to  compel  the  foreign  government  to  pay  the  claim.  Such 
remedy  as  the  claimant  has  it  is  within  the  discretion  of  his  own  govern- 
ment, through  diplomatic  measures,  to  accord,  and  no  legal  means 
exists  to  compel  his  government  to  prosecute  the  claim.  In  the  exercise 
of  the  extraordinary  remedy  known  as  diplomatic  protection,  the 
government  acts  politically  upon  its  own  responsibility  as  a  sovereign, 
free  from  any  legal  restrictions  by  or  legal  obligations  to  the  claimant. 

§  139.  Merger  of  the  Private  Claim  into  the  National  Claim  of  the 
State. 
As  between  the  government  and  its  own  citizen  the  claim  may  in 
■some  degree  be  regarded  as  private.''    It  becomes  international  in  char- 
acter when  the  government  espouses  it  and  presents  it  diplomatically 

'  Vattel,  Law  of  nations,  Chitty-Ingraham  ed.,  Phila.,  1855,  §  17. 
2  Meade  v.  U.  S.,  2  Ct.  CI.  224. 

» Gray  v.  U.  S.,  21  Ct.  CI.  392;  Camy  (France)  v.  U.  S.,  Jan.  15,  1880,  Boutwell's 
Rep.  105,  Moore's  Arb.  2400. 

*  Although,  as  will  be  seen,  it  is  by  no  means  subject  to  the  rules  of  private  law. 


MERGER   OF   PRIVATE   INTO   NATIONAL   CLAIM  357 

to  the  debtor  government.^  When  it  is  thus  taken  up,  the  private 
claim  becomes  merged  in  the  pubUc  demand  of  the  government,  so 
that  from  the  international  point  of  view  the  government,  having  made 
the  claim  its  own,  assumes  the  character  of  the  party  claimant." 

Diplomatic  protection  is  in  its  nature  an  international  proceeding. 
When  a  citizen  appeals  to  his  government  to  demand  redress  from  a 
foreign  government  in  his  behalf,  he  thereby  voluntarily  makes  his 
claim  a  subject  of  international  negotiation  independent  of  his  control, 
and  must  abide  by  such  settlement  as  the  government  may  make.' 
By  espousing  a  claim  of  its  national  for  injuries  infiicted  by  a  foreign 
state,  the  claimant  government,  acting  in  its  sovereign  capacity,  makes 
the  claim  its  own  and  therefore  acts  neither  as  agent  nor  trustee  for 
the.  claimant.'*  The  government  is  merely  the  channel  of  international 
communication.  Before  an  international  commission,  the  claimant 
is  ordinarily  the  nation  on  behalf  of  its  citizen,^  for  the  treaty  or  proto- 
col creating  the  commission  is  always  an  act  between  state  and  state.^ 
All  claims  urged  by  a  nation  are  technically  national;  but  there  is  a 
manifest  distinction  between  claims  founded  upon  an  injury  to  the 
whole  people  and  those  based  upon  an  injury  to  a  particular  citizen. 
Nevertheless,  legally,  it  is  unquestionable  that  the  state  is  the  real 
party  in  interest,  and  that  the  individual  claunant  has  no  legally  en- 

1  Del  Rio  (Mexico)  v.  Venezuela,  Feb.  26,  1903,  Ralston,  880,  886;  Fabiani  (France) 
V.  Venezuela,  Feb.  19,  1902,  Sen.  Doc.  533,  59th  Cong.,  Ist  sess.,  81,  132;  Great  West- 
ern Ins.  Co.  V.  U.  S.,  19  Ct.  CI.  206,  217. 

2  Boynton  v.  Blaine,  139  U.  S.  306,  323;  La  Abra  Silver  Mining  Co.  v.  U.  S.,  175 
U.  S.  423;  Frelinghuysen  v.  Key,  110  U.  S.  63;  Russia  v.  Turkey,  Hague  Court  of 
Arbitration,  July  22,  Aug.  4,  1910,  7  A.  J.  I.  L.  178,  and  Ruze  in  15  R.  D.  I.  (n.  s.) 
357. 

» See  Mr.  Adams  in  Amer.  St.  Pap.,  For.  Rel.,  IV,  704. 

*  The  Great  Western  Ins.  Co.  v.  U.  S.,  19  Ct.  CI.  206,  216-218,  and  112  U.  S.  193; 
La  Abra  Silver  Mining  Co.  v.  U.  S.,  29  Ct.  CI.  432,  510;  Rustorajee  v.  The  Queen, 
L.  R.  1  Q.  B.  487,  L.  R.  2  Q.  B.  69;  Anzilotti  in  13  R.  G.  D.  I.  P.  (1906),  308.  See 
Brief  of  U.  S.  Solicitor  in  Reid  v.  U.  S.,  Sen.  Misc.  Doc.  140,  35th  Cong.,  1st  sess., 
62,  and  decision  of  Court  of  Claims  in  support.  Meade  v.  U.  S.,  Ct.  CI.  Rep.,  H.  R. 
226,  36th  Cong.,  Ist  sess.,  38,  50. 

*  Mihani  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  762.  But  see  Metzger  (Ger- 
many) V.  Venezuela,  ibid.  579  (dictum)  to  effect  that  a  claim  is  not  that  of  a  nation 
but  of  an  individual. 

*  Frelinghuysen  v.  Key,  110  U.  S.  63. 


358  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

forceable  control  over  the  claim,  either  in  its  presentation  or  in  the 
distribution  of  any  award  which  may  be  made.^ 

That  a  diplomatic  claim  is  purely  a  matter  between  state  and  state 
is  evidenced  by  the  fact  that  the  government  may  deal  with  it  independ- 
ently of  the  will  of  the  claimant.  The  government's  control  over  the 
claim,  as  will  be  more  fully  observed  hereafter,^  is  absolute,  and  in 
the  United  States  this  control  is  vested  in  the  Executive  free  from 
interference  by  the  courts  or  by  the  citizen  who  beneficially  owns  the 
claim.  ^ 

As  will  be  seen  more  fully  hereafter,  the  government  may  dispose  of 
the  claim  in  any  manner  it  deems  expedient,  without  consulting  the 
claimant's  wishes.  The  individual,  however,  cannot,  on  principle, 
by  his  waiver  of  the  right  to  demand  indemnity,  estop  his  government 
from  prosecuting  a  claim  for  the  offense  to  the  state  in  the  person  of 
its  citizen. "^ 

When  the  government  presents  a  claim  diplomatically,  the  defendant 
state  has  the  right  to  rely  upon  the  good  faith  of  the  claimant  govern- 
ment as  to  the  bona  fide  character  of  the  claim  and  of  the  citizen  on 
whose  behalf  it  is  presented.  The  foreign  government  may  properly 
assume  that  the  claim  has  received  thorough  examination  and  that 
the  claimant  government  is  convinced  of  its  justice.  This  is  in  a  meas- 
ure a  protection  against  the  presentation  of  fraudulent  claims.  It  is 
indeed  the  duty  of  a  government  never  to  use  its  powers  so  as  to  enable 
a  citizen  to  accomplish  a  wrong  against  another  state,  and  the  duty  of 
good  faith  is  laid  equally  upon  the  citizen.  If  at  any  period  of  the 
proceeding  the  claimant  government  discovers  that  the  claim  cannot 
be  honorably  or  honestly  pressed,  it  is  not  only  its  right  but  its  duty 
to  drop  the  claim,  and  if  already  paid  by  the  foreign  government,  to 

1  Infra,  §  152.  See  also  ruling  on  Necessity  for  personal  appearance  (U.  S.)  v. 
Venezuela,  Dec.  5,  1885,  Opinions,  25,  and  Mr.  Frelinghuysen,  Sec'y  of  State,  to 
Messrs.  Mullan  and  King,  Feb.  11,  1884,  Moore's  Dig.  VI,  1016.  While  the  respec- 
tive agents  and  counsel  before  an  international  commission  represent,  not  the  claim- 
ants, but  their  respective  governments,  permission  is  occasionally  granted  by  the 
government  to  the  counsel  of  the  claimant  to  appear  before  a  commission. 

^  Infra,  §  144  et  seq. 

'  Infra,  §  143.  The  extent  of  the  power  of  the  courts  to  control  executive  actiou  in 
the  distribution  of  awards  is  discussed  infra,  §  154. 

*  Infra,  p.  372,  and  especially  Jencken  claim  i;.  Spain,  contra. 


EFFECT  OF  NATIONAL  CHARACTER  OF  THE  CLAIM        359 

return  the  indemnity  received.^  This  is  a  direct  result  of  the  responsi- 
bihty  for  good  faith  assumed  by  the  government  in  the  presentation 
of  a  claim,  and  it  has  been  invoked  even  where  claims  were  submitted 
to  arbitration  admittedly  without  previous  examination  as  to  their 
merits." 

§  140.  Effect  of  National  Character  of  the  Claim. 

The  presentation  of  a  claim  for  injury  to  a  citizen  being  a  transaction 
between  sovereign  and  sovereign,  it  follows  that  the  settlement  or 
adjudication  of  the  claim  is  in  its  nature  a  matter  of  international  law 
and  procedure,  and  that  it  is  confined  to  the  determination  of  the  valid- 
ity and  amount  of  the  claim  as  between  the  two  sovereigns,  and  does 
not  extend  to  the  determination  of  questions  regarding  the  private 
ownership  of  the  indemnity.^ 

Since  the  claim  is  national  in  character,  the  indemnity  fund  received 
in  payment  of  the  claim  is  a  national  fund.  The  sum  must  be  paid 
to  the  claimant  government  and  receipted  for  by  the  appropriate  govern- 
ment official.  It  does  not  become  the  property  of  the  individual  claim- 
ant, either  as  legal  owner  or  cestui  que  trust,  until  his  own  government 
has  paid  it  over  to  him."*  The  government  does  not  hold  the  fund 
either  as  an  agent  or  trustee  for  the  claimant,^  except  in  the  larger 

^  The  United  States  has  abandoned  claims  for  fraud  at  various  stages  of  the  pro- 
ceedings (Moore's  Dig.  VI,  §  1057)  and  has  refunded  indemnities  received  upon 
claims  found  to  have  been  fraudulent.  See  Frelinghuysen  v.  Key,  110  U.  S.  63,  74; 
La  Abra  Silver  Mining  Co.  v.  U.  S.,  175  U.  S.  423,  458.  For  a  more  complete  dis- 
cussion of  this  matter,  see  infra,  §  147. 

•  Circular  of  Sec'y  of  State  Fish,  Feb.  23,  1870,  in  the  matter  of  the  presentation  of 
claims  to  the  U.  S.-Mexican  commission  of  1868,  Moore's  Arb.  1312.  The  Weil  and 
La  Abra  awards  paid  by  Mexico  to  the  U.  S.  were  found  to  have  been  fraudulent, 
and  were  refunded  to  Mexico  by  Act  of  Congress.  Message  of  the  President,  Dec.  3, 
1900,  Sen.  Doc.  231,  pt.  3,  56th  Cong.,  2nd  sess.,  356-358. 

'  Opinion  by  the  Solicitor  for  the  Dept.  of  State,  In  re  the  distribution  of  the  Alsop 
award,  Washington,  1912,  pp.  14-15  and  infra,  p.  382. 

*■  Thus  Haiti  was  held  not  to  have  complied  with  its  duty  of  paying  a  claim  to 
the  U.  S.  government  when,  without  authorization  of  the  American  legation,  it  de- 
posited funds  in  a  Haitian  bank  to  the  order  of  the  legation,  the  funds  being  attached 
by  a  creditor  of  the  individual  claimant.  Haiti  was  not  released  from  its  debt  by 
payment  to  the  bank.  Richard  Allen's  case.  For.  Rel.,  1895,  814-817.  See  also  pay- 
ment of  Delagoa  Bay  award,  deposited  in  British  Bank,  For.  Rel.,  1900,  845-849. 

» See,  however,  Act  of  Congress,  Feb.  27,  1896,  29  Stat.  L.  32,  and  infra,  §  155. 


360  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

sense  that  every  public  functionary  is  clothed  with  a  trust.  There  is 
no  necessity  therefore  of  having  the  claimant's  approval  of  a  settle- 
ment, or  of  having  his  receipt  pass  between  the  two  governments.^ 

No  individual  claimant  has,  as  a  matter  of  strict  legal  or  equitable 
right,  any  lien  upon  the  fund  m  the  hands  of  the  Executive.^  There 
is,  however,  a  certain  moral  obligation  to  the  state  which  has  paid  the 
indemnity,  and  to  the  individual  claimant  for  whose  benefit  it  has  been 
received,  to  bestow  the  fund  in  the  manner  intended  by  the  defendant 
government.^ 

§  141.  Varying  Effects  of  Merger  of  Different  Classes  of  Claims. 

In  any  international  reclamation  arising  out  of  an  injury  inflicted 
upon  an  American  citizen,  the  private  claim  becomes  merged  in  the 
public  demand,  the  injury  to  the  state,  in  the  person  of  the  citizen, 
becoming  in  theory  the  subject  of  complaint.  The  government's  com- 
plete control  over  the  claim,  and  the  absence  of  any  character  of  agency 
or  trust  in  the  government's  demand  or  of  any  legally  enforceable 
right  of  the  individual  to  the  whole  or  a  distributive  share  of  the  pro- 
ceeds received  by  his  government  from  a  foreign  nation,  does  not  be- 
cloud the  fact  that  there  may  be  differences,  depending  upon  the  private 
or  public  character  of  the  citizen,  in  his  moral  right  to  the  indemnity 
claimed  and  collected  by  his  government.  For  example,  if  the  citizen 
is  a  private  individual  injured  in  his  person  or  property,  it  is  not  con- 
ceivable, in  the  absence  of  any  censurable  conduct  on  his  part,  and 
notwithstanding  the  absence  of  legal  obligation,  that  the  government 
will  fail  to  make  him  the  beneficiary  of  any  indemnity  it  may  receive — 
with  a  possible  deduction  for  expenses.    Moreover,  by  an  assignment 

'  Two  receipts  usually  pass,  one  from  the  claimant  to  the  debtor  government,  the 
other  from  the  individual  claimant  to  his  own  government.  Claim  of  Frederick 
Mevs  V.  Haiti,  For.  Rel.,  1893,  371-382.  Settlement  of  claim  of  U.  S.  and  Venezuela 
Co.  (U.  S.)  V.  Venezuela,  protocol  of  Aug.  21,  1909,  For.  Rel.,  1909,  624. 

=  Williams  v.  Heard,  140  U.  8.  529;  U.  S.  v.  Weld,  127  U.  S.  51;  Rustomjee  v.  The 
Queen,  2  L.  R.,  Q.  B.  D.  (1876),  69. 

3  Anzilotti  in  13  R.  G.  D.  I.  P.  (1906),  308;  WiUiams  v.  Heard,  140  U.  S.  529  (dic- 
tum). Sometimes  the  claimant  government  expressly  agrees  with  the  debtor  govern- 
ment to  devote  a  certain  part  of  the  sum  to  the  cancellation  of  specific  debts. 
Minister  Russell  to  the  Venezuelan  Min.  of  For.  Aff.,  Sept.  9,  1909,  For.  Rel, 
1909,  628. 


\-  .UVING    EFFECTS   OF   MERGER   OF   DIFFERENT   CLASSES   OF   CLAIMS       3(jl 

of  liis  claim  to  a  person  of  another  nationality  or  by  his  abjuring  his 
allegiance,  such  a  claim  would  be  deemed  to  lose  its  American  nation- 
ality and  the  government  its  right  and  interest  in  pressing  for  settlement. 

On  the  other  hand,  when  the  individual  in  whose  person  the  state  is 
injured  occupies  a  public  position,  such  as  consul,  ambassador  or  sailor 
on  a  public  vessel,  the  national  wrong  becomes  greater  and  the  private 
wrong  (and  the  resulting  right  to  redress)  apparently  less.  The  na- 
tional injury  will  survive  any  assignment  or  transfer  of  the  private  claim 
to  alien  ownership.  The  individual's  right  to  indemnity  can  hardly 
be  considered  as  a  claim  against  a  foreign  country  but  rather  as  a  re- 
quest upon  his  o^Ti  government  for  its  humane  consideration  of  his 
sufferings.  In  such  cases,  notwithstanding  the  fact  that  awards  and 
allowances  have  been  made  on  numerous  occasions  to  individual  consuls 
or  sailors  ^  in  whose  persons  an  afifront  to  the  nation  had  been  committed, 
and  the  fact  that  the  government  frequently  demands  pecuniary'  rep- 
aration for  the  injuries  sustained  by  such  public  servants,  it  is  not 
believed  conformable  to  the  public  interest  that  the  government  in 
negotiating  for  the  settlement  of  a  national  political  grievance  should 
be  embarrassed  by  private  claims  of  its  citizens  growing  out  of  the 
subject  of  controversy.^  While  the  private  injuries  may  constitute 
an  element  in  the  measure  of  damages,  it  is  not  the  principal  item  of 
damage,  and  any  sum  paid  to  the  individual  as  a  result  of  a  diplomatic 
settlement  may  be  regarded  as  a  pure  gratuity. 

Another  example  of  (attempted)  merger  of  the  private  and  public 
interest  in  an  international  claim  was  exposed  in  the  claim  of  the  sea- 
men of  the  U.  S.  S.  Maine  against  the  United  States  (as  the  assignee  of 

^  Helmsman  on  U.  S.  S.  Water  Witch  (U.  S.)  v.  Paraguay,  1855,  1859,  Moore's  Arb. 
1486,  1494;  U.  S.  v.  Japan,  1863,  part  of  indemnity  being  paid  to  seamen  on  the 
Wyoming,  treaty  of  Oct.  22,  1864,  Malloy's  Treaties,  I,  1011;  U.  S.  v.  Chile,  sailors 
of  U.  S.  S.  Baltimore  assaulted  in  Valparaiso,  For.  Rel.,  1892,  57  et  seq.;  France  v.  U.  S., 
kiUing  of  French  seamen  in  Toulon  Harbor,  Maj-  1,  18.34,  Act  of  June  28,  1834,  4  Stat. 
L.  701;  Great  Britain  v.  Japan,  kiUing  of  British  sailors  at  Yedo  in  1862,  Dipl.  Cor., 
1863,  II,  989;  France  v.  Japan,  1868,  killing  of  seamen  of  frigate  Venus  and  corvette 
Dwpleix,  Dipl.  Cor.,  1868,  I,  698;  Assault  upon  sailors  of  U.  S.  S.  Columbia  and  Buf- 
falo in  Panama,  1906  and  1908;  settled  by  indemnity,  For.  Rel.,  1909,  479,  491. 

'  Private  citizens  maj'  by  the  bounty  of  Congress  receive  the  benefits  of  an  in- 
demnity paid  for  a  national  grievance,  c.  g.,  the  Alabama  claims,  and  the  Acts  of 
Congress  of  1874  and  1882. 


362  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

Spain)  before  the  Spanish  Treaty  Claims  Commission,  arising  out  of 
the  injuries  sustained  by  the  seamen  when  that  vessel  was  blown  up, 
under  an  allegation  of  responsibility  of  Spain,  in  the  harbor  of  Havana 
in  1898.  The  claim  was  dismissed  by  the  Commission  on  the  ground 
that  individual  claims  do  not  arise  in  favor  of  the  officers  and  seamen 
of  a  ship  of  war  who  receive,  in  the  line  of  duty,  injuries  to  their  persons 
for  which  a  foreign  government  is  responsible;  and  that  the  claim  being 
wholly  national,  all  injuries  to  officers  and  seamen  are  merged  in  the 
national  injury,  their  only  relief  being  the  gratuitous  bounty  of  their 
own  government.^  This  decision  places  these  claims  in  the  same  class 
as  the  cases  discussed  in  the  preceding  paragraph.  A  better  reasoned 
ground  of  decision  is  contained  in  the  concurring  opinion  of  Commis- 
sioner Maury  who  took  the  position  that  the  treaty  of  peace  itself 
put  an  end  to  and  extinguished  all  causes  of  difference  between  the 
belligerents.^ 

§  142.  National  Claims  which  Survive  Private  Settlement. 

From  the  foregoing  discussion  of  the  relation  between  the  private 
and  the  public  injury  it  may  be  concluded  that  there  are  two  classes 
of  injuries  to  the  state:  first,  those  which  directly  affect  the  state,  being 
inflicted  either  upon  the  sovereign  himself  or  his  representatives,  or 
upon  the  flag,  public  vessels  or  public  property  of  the  nation,  out  of 
which  injuries  no  private  claim  can  arise,  and  secondly,  those  which 
indirectly  affect  the  state,  being  inflicted  upon  its  citizens. 

This  second  class  of  claims,  in  which  our  interest  is  specially  engaged, 
may  be  subdivided  into  two  categories.  In  the  first  category  are  wrongs 
which  always  injure  the  sovereign,  because  by  the  act  complained  of 
the  citizen  has  been  rendered  unable  to  perform  his  duties  toward  the 
state,  e.  g.,  his  duties  of  loyalty,  the  performance  of  military  service, 
or  the  payment  of  taxes.  If  the  citizen  is  restored  to  his  rights  or  former 
condition,  thus  enabling  him  to  perform  his  duties  as  before,  the  state 
is  no  longer  injured.  But  if  not  restored  to  his  rights,  e.  g.,  if  he  is  killed 
or  badly  wounded,  disabling  him  from  the  performance  of  his  obliga- 

1  McCann  v.  U.  S.,  No.  30,  Opinion  of  the  Commission  delivered  March  6,  1902, 
Opinion  by  the  President  of  the  Commission. 

^  Concurring  opinion  of  Mr.  Commissioner  Maury,  p.  4, 


DISCRETION    UNCONTROLLABLE    BY    COURTS  363 

tions  to  his  country,  the  independent  right  of  the  state  to  demand 
compensation  survives  any  denationaUzation  of  the  individual's  claim 
by  assignment  or  transfer  by  operation  of  law.  In  the  second  category 
of  cases  the  injury  to  the  citizen  may  or  may  not  result  in  an  actionable 
injury  to  the  state,  depending  upon 

(a)  whether  or  not  the  citizen  may  be  put  in  statu  quo  by  the  author- 
ities of  the  state  of  residence,  and 

(b)  whether  or  not  the  particular  acts  complained  of  are  so  flagrant 
as  obviously  to  be  intended  as  an  affront  to  the  state. 

If  the  citizen  is  placed  in  statu  quo,  no  affront  to  the  state  having 
been  involved,  the  injury  to  the  state  is  not  such  as  will  survive  restitu- 
tion or  compensation  to  the  citizen.  This  class  of  acts  includes  per- 
sonal indignities  toward  citizens  who  are  not  officials  of  the  government, 
and  injuries  to  the  property  rights  of  citizens. 

PROTECTION   DISCRETIONARY   WITH   THE   EXECUTIVE 

§  143.  Discretion  Uncontrollable  by  Courts. 

As  already  indicated,  the  Executive,  in  the  person  of  the  Secretary 
of  State,  has  a  practically  unhmited  discretion  in  determining  whether 
protection  should  be  extended  or  a  claim  presented  to  a  foreign  govern- 
ment in  a  given  case.  The  only  possible  limitation  upon  the  free  ex- 
ercise of  the  Secretary's  judgment  arises  out  of  the  courtesy  due  to 
the  will  of  Congress,  expressed  occasionally  m  the  form  of  a  joint  reso- 
lution requesting  the  President  to  call  the  attention  of  a  foreign  gov- 
ernment to  an  injustice  conmiitted  against  an  American  citizen  or 
empowering  him  to  take  effective  measures  to  obtain  redress  from  a 
foreign  state  on  behalf  of  an  injured  citizen.^  The  courts  and  the 
Attorney  General  have  recognized  that  the  Secretary  of  State  must 

'  Such  resolutions  in  the  cases  of  Helen  M.  Fiedler  and  of  A.  Bolten  and  G.  Rich- 
elieu are  printed  in  S.  Doc.  231,  56th  Cong.,  2nd  sess.  (compilation  of  reports  of  com- 
mittees on  foreign  relations),  pp.  325  and  327.  The  recommended  resolutions  in  these 
cases  do  not  appear  to  have  been  passed.  See  also  resolution  approved  June  2,  1858 
(11  Stat.  L,  370)  authorizing  use  of  necessary  force  in  the  case  of  the  Water  Witch  v. 
Paraguay;  Joint  resolution  28  of  June  19,  1890  (26  Stat.  L.  674)  in  Venezuelan  Steam 
Tr.  Co.  claim,  Moore's  Dig.  VII,  112;  J.  Res.  30,  Mar.  2,  1895  (28  Stat.  L.  975)  in 
Mora  claim  v.  Spain.  For.  Rel.,  1895,  II,  1160,  1163.  See  also  memorandum  by  the 
Solicitor  of  the  Dept.  of  State,  "Right  to  protect  citizens  in  foreign  countries  by 
landing  forces,"  Washington,  August,  1912,  Revised  ed.,  pp.  37-38. 


364  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAI> 

decide,  according  to  his  own  discretion,  whether  he  will  press  the  claim 
of  an  American  citizen  upon  a  foreign  government.^  As  in  the  case 
of  all  extraordinary  legal  remedies,  the  employment  of  the  remedy 
of  diplomatic  protection  is  within  the  discretion  of  the  grantmg  au- 
thority. The  courts,  moreover,  have  disclaimed  any  power,  by  man- 
damus or  otherwise,  to  compel  the  Secretary  of  State  to  present  and 
urge  a  claim  of  a  citizen  of  this  country  against  a  foreign  government, 
taking  the  ground  that  such  a  function  is  political  in  its  nature  and 
within  the  province  of  the  Executive.^  The  writ  of  mandamus,  indeed, 
cannot  issue  to  direct  or  control  the  head  of  an  executive  department 
in  the  discharge  of  an  executive  duty,  involving  the  exercise  of  judg- 
ment and  discretion.^ 

That  the  exercise  of  the  protective  function  from  its  very  inception 
is  discretionary  is  evidenced  by  the  fact  that  the  Secretary  of  State 
is  empowered  by  Congress  to  refuse,  in  his  discretion,  to  issue  a  pass- 
port.^ Thus  the  Secretary  might  decline  to  issue  a  passport  to  an 
American  citizen  who  intends  to  accomplish  a  criminal  purpose  or  to 
use  it  in  the  protection  of  an  illegitimate  enterprise.^  Diplomatic 
protection  or  the  support  of  a  claim  may  in  any  case  be  denied  as  a 
matter  of  public  policy.^ 

The  exercise  of  the  Secretary's  discretion  is  most  frequently  illus- 
trated in  the  presentation  and  pressure  of  foreign  claims  and  the  nego- 
tiations incidental  thereto.  He  may,  for  example,  refuse  to  present 
a  claim  at  all.^  In  pursuance  of  his  right  to  investigate  the  merits  of 
a  claim  and  the  claimant's  title  to  protection,  he  may  and  has  often 

1  U.  S.  V.  La  Abra  Silver  Mining  Co.,  29  Ct.  CI.  432;  Atty.  Gen.  Black  in  9  Op.  338 
(Perkins'  claim  v.  Russia);  Moore's  Dig.  VI,  695. 

2  U.  S.  ex  rel.  Holzendorf  v.  Hay  (1902),  20  D.  C.  App.  576,  578. 

^  U.  S.  ex  rel.  Boynton  v.  Blaine,  139  U.  S.  306  (in  connection  with  distribution  of 
award),  and  Marbury  v.  Madison  (1803),  1  Cranch,  137,  166;  Brown  v.  Root,  18  D.  C. 
App.  239,  242.  See  also  W.  W.  Lucas  in  Juridical  Review,  October,  1912,  185  et  scq., 
Poujade  v.  I'Etat  (France),  Sirey,  1906,  3,  158,  and  Laferriere,  Traite  de  juridiction 
administrative,  Paris,  1896,  II,  48. 

*  R.  S.,  §  4075.    hifra,  p.  508. 

'  For.  Rel.,  1907,  II,  1079  et  seq.    Infra,  p.  495. 

*  Moorts  Dig.  VI,  §  974.  See  also  Mr.  Seward,  Sec'y  of  State,  to  Mr,  Otterbourg, 
Aug.  8,  1867,  Dip].  Cor.,  1867,  II,  445. 

'  Mr.  Bayard,  Sec'y  of  State,  to  the  President,  Jan.  20,  1887,  For.  Rel.,  1887,  607 
(Pelletier  case).    See  also  Moore's  Dig.  VI,  §  973. 


DISCRETION    UNCONTROLLABLE    BY   COURTS  365 

declined  to  present  speculative,  exorbitant  or  fraudulent  claims,  claims 
based  upon  acts  against  public  policy  or  the  laws  of  the  United  States 
or  international  law,  or  claims  in  which  the  claimant  is  considered 
guilty  of  censurable  conduct  or  otherwise  not  entitled  to  diplomatic 
assistance.^ 

The  discretionary  power  of  the  Executive  in  the  presentation  of 
diplomatic  claims,  and  in  respect  of  the  time,  extent  and  means  of 
pressure  enables  the  Department  of  State  to  exercise  the  fullest  control 
over  claims,  a  power  to  be  examined  m  detail  presently.  For  example, 
it  is  not  the  practice  of  the  Department  to  present  claims  arising  out 
of  the  arrest  and  detention  for  military  service  of  naturalized  American 
citizens  who  return  to  their  native  country.^  Contract  claims  are  under 
ordinary  circumstances  not  presented  diplomatically,  although  the  use 
of  the  unofficial  good  offices  of  the  American  diplomatic  representative 
is  usually  authorized.'^  Palmerston  and  other  British  secretaries  of 
State  for  Foreign  Affairs  have  considered  the  enforcement  of  claims 
arising  out  of  unpaid  national  bonds  of  foreign  states  a  matter  of  gov- 
ernmental discretion."*  Claims  arising  out  of  certain  torts,  of  an  es- 
pecially flagrant  and  serious  nature,  such  as  murder,  mob  violence, 
etc.,  are  usualty  pressed  at  once  by  the  United  States  and  other  govern- 
ments, without  requiring  the  exhaustion  of  local  remedies.^  The  De- 
partment, moreover,  has  the  right  to  prosecute  a  claim  against  a  foreign 
government  either  in  its  original  form,  to  modify  it,  or  to  effect  a  com- 
promise without  the  permission  of  the  claimant,  and  without  render- 
ing itself  responsible  to  the  claimant  by  reason  of  the  exercise  of  such 
discretionary  powers.  In  the  protection  of  the  citizen,  the  govern- 
ment's authority  and  powers  are  plenary.  The  citizen  is  bound  by 
its  action,  and  must  accept  the  measure  of  protection  which  the  Execu- 
tive oflBcials  in  the  exercise  of  their  sound  discretion  deem  it  proper 
to  afford. 

1  Infra,  Part  IV,  ch.  Ill,  §  337  et  seq. 

2  Mr.  Adee,  Acting  Sec'y  of  State,  to  Mr.  Harris,  Sept.  20,  1899,  For.  Rel.,  1899,  75. 

3  Supra,  §  113.  In  De  Witt  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3466, 
Thornton,  Umpire,  considered  that  he  had  the  same  discretionary  right  to  entertain 
a  contractual  claim  as  was  possessed  by  the  claimant  government. 

*  Supra,  p.  314. 

^  E.  g.,  Lienchou  riots  in  China,  1904;  Grenada  massacre  of  Oct.  13,  1856;  Fretz 
(U.  S.)  V.  Colombia,  Mar.  8,  1886,  Moore's  Aih.  2560  (Panama  riot  of  April  15,  1856). 


CHAPTER  m 

GOVERNMENT  CONTROL  OVER  CLAIMS 

§  144.  Power  to  Settle,  Compromise,  Release  or  Abandon  Claim. 

It  will  have  become  apparent  from  what  has  gone  before  that  a 
necessary  corollary  of  the  government's  discretion  in  the  presentation 
of  claims  is  an  unlimited  control  over  them  in  the  conduct  of  diplomatic 
negotiations.  The  government  is  the  sole  judge  of  what  claims  it  will 
enforce,  and  of  the  manner,  time,  means  and  extent  of  enforcement. 
It  may  refuse  to  present  a  claim  at  all.  After  espousal  of  a  claim,  the 
government  may  abandon  it,  submit  it  to  arbitration  or  make  any 
other  disposition  thereof  which  it  deems  expedient  in  the  public  inter- 
est, e.  g.,  the  government  may  compromise  it,  or  release  it,  without 
compensation  or  for  a  consideration  of  benefit  to  the  general  public. 

The  government's  power  to  settle  the  claim  of  its  citizen  against  a 
foreign  country  is  practically  unrestricted.^  Its  only  limitation  lies 
in  the  moral  and  equitable  duty  to  compensate  the  citizen  whose  claim 
it  negotiates  away  for  a  consideration  of  benefit  to  the  public  generally 
rather  than  to  the  individual  claimant.^  The  exercise  of  this  power 
of  dealing  at  will  with  the  claims  of  its  citizens  against  foreign  states 
is  illustrated  by  numerous  executive  agreements  for  the  settlement 
of  claims,^  and  by  treaties  submitting  claims  to  arbitration  under  con- 
ditions of  various  kinds.  Thus,  claims  may  be  absolutely  barred  from 
recovery  which  are  not  presented  to  arbitration  within  a  definite  time,* 
or  which,  under  a  specific  protocol,  the  contracting  governments  do 

1  Moore's  Dig.  VI,  §  1055. 

2  Infra,  §  149. 

*  E.  g.,  Claims  convention  between  U.  S.  and  Brazil,  Jan.  27,  1849,  Malloy's 
'lYeaties,  1910,  I,  144;  39  St.  Pap.  42. 

*  E.  g.,  art.  5  of  the  convention  between  U.  S.  and  Venezuela,  Apr.  25,  1866,  Mal- 
loy's Treaties,  II,  1857.  See  also  Moore's  Dig.  VII,  §  1080;  and  compromis  of 
Dec.  18,  1913  for  settlement  of  claims  between  France  and  Turkey,  41  Clunet  (1914), 
1444,  1445. 

366 


POWER    TO    SETTLE,    COMPROMISE,    RELEASE    OR    ABANDON    CLAIM      367 

not  submit  to  arbitration.^  The  government  has  the  right  and  power 
to  fix  upon  the  time,  manner  and  place  of  payment,  and  the  claimants 
must  bear  any  incidental  loss  on  account  of  exchange  or  interest. - 

Inasmuch  as  the  government  is  under  no  legal  obligation  to  any 
citizen  to  prosecute  his  claim  against  a  foreign  country,  but  is  guided 
solely  by  the  public  interest,  considerations  of  public  policy  and  up- 
right dealing  between  states  may  warrant  the  abandonment  of  a  claim. 
For  example,  if  at  any  period  of  the  proceedings,  the  government  be- 
comes satisfied  of  the  falsity  or  injustice  of  a  claim  of  its  citizen  against 
a  foreign  state  it  may  abandon  all  further  prosecution  thereof.  This 
power  has  been  exercised  by  the  United  States  even  after  an  award 
of  an  arbitral  tribunal  in  favor  of  an  American  claimant,  the  govern- 
ment declining  to  enforce  an  award  which  newly-discovered  evidence 
indicated  as  having  been  erroneous.'^  Similarly,  the  award  of  the  do- 
mestic commission  of  1849,  established  under  the  treaty  with  Mexico 
of  1848,  was  set  aside  by  authority  of  Congress  in  the  Gardiner  case,'^ 
and  the  awards  of  Umpire  Thornton  of  the  United  States-Mexican 
Commission  of  1868  were  reopened  in  the  Weil  and  La  Abra  claims,^ 
subsequently  discovered  to  have  been  fraudulent,  and  indemnities 
already  paid  by  Mexico  and  in  part  transmitted  to  claimants  were 
refunded  to  jVIexico  by  the  United  States.*'  The  Secretary  of  State, 
in  the  case  of  the  Caroline,  returned  to  Brazil,  against  the  claimant's 
protest,  an  indemnity  which  had  been  paid  by  Brazil  on  a  fraudulent 
claim. ^ 

Pecuniary  claims  may  not  only  be  lost  by  abandonment  of  the  gov- 

'-  E.  g.,  art.  2  of  the  agreement  between  U.  S.  and  Great  Britain,  Aug.  18,  1910, 
Malloy's  Treaties  (suppl.  1913  by  Charles)  III,  51. 

2  See  e.  g.,  the  unratified  convention  of  Jan.  30,  1843  with  Mexico  for  payment  of 
awards  under  convention  of  April  11,  1839,  32  St.  Pap.  1234.  Mr.  Uhl,  Acting  Sec'y 
of  State,  to  Mr.  Woodruff,  May  25,  1894,  Sen.  Doc.  233,  55th  Cong.,  2nd  sess.,  40. 

3  Pelletier  (U.  S.)  v.  Haiti,  and  Lazare  (U.  S.)  v.  Haiti,  May  24,  1884,  Moore's  Arb. 
4768,  1749,  1779,  1800.  Claims  submitted  to  an  arbitral  commission  have  in  several 
instances  been  withdrawn  before  a  decision  was  rendered.  Ralston,  J.  H.,  Interna- 
tional arbitral  law,  163. 

*  Moore's  Arb.  1255. 
^  Ibid.  1324  et  seq. 

*  Infra,  p.  375. 

'  Sen.  Rep.  1376,  40th  Cong.,  1st  eese. 


oG8  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

ernment,  but  certain  forms  of  international  action  may  serve  to  ex- 
tinguish the  claim.  For  example,  war  between  the  claimant  and  de- 
fendant countries  would  extinguish  any  private  claims  not  provided 
for  in  the  treaty  of  peace,  at  least  so  far  as  concerns  those  which  were 
a  direct  cause  of  the  war.^  Again,  if  a  claimant  suffers  injury  in  a 
transaction  for  which  his  government  assumes  responsibiUty,  his  claim 
becomes  merged  in  the  diplomatic  settlement  of  the  political  question 
involved.^  In  all  cases,  the  international  settlement  of  a  claim  by 
agreement  of  the  two  governments  involved,  estops  the  claimant  from 
all  right  to  again  demand  any  redress  from  the  foreign  country  against 
which  his  claim  arose.  ^ 

When  one  of  several  states  may  be  considered  pecuniarily  liable  for 
a  violation  of  international  law  to  the  detriment  of  a  citizen,  his  govern- 
ment may  decide  as  to  which  state  it  will  hold  responsible.  This  rule 
was  applied  to  several  cases  of  wrongful  capture  by  French  privateers 
of  American  vessels  taken  into  neutral  ports  of  Spain,  Netherlands 
and  Denmark  and  there  condemned.  France  was  considered  liable 
for  the  illegal  capture,  and  the  neutral  nation  for  permitting  the  in- 
fringement of  its  obligation  of  neutrality  toward  the  United  States. 
It  was  held  by  the  Court  of  Claims  in  a  French  Spoliation  case  that  when 
the  United  States  elected  to  hold  Spain  liable  for  the  illegal  condemna- 
tion, its  rights  against  France  were  thereby  lost,''  and  the  act  of  the 
government  was  held  binding  upon  the  citizen.^     Denmark  appears 

1  Moore's  Dig.  VI,  §  1053;  White  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  Opin.  287  (not 
in  Moore). 

2  McLeod  (Gt.  Brit.)  v.  U.  S.,  Feb.  8,  1853,  Moore's  Arb.  2419,  2422.  See  also 
McCann  v.  U.  S.,  No.  30  (The  Battleship  Maine  cases,  before  the  Spanish  Tr.  CI. 
Com.)  in  which  Commissioner  Maury  (p.  2  of  his  opinion)  held  that  art.  VII  of  the 
treaty  of  peace  of  Dec.  10,  1898  put  an  end  to  these  claims  as  individual  claims. 
Final  Report,  May  2,  1910,  p.  11  and  Opinion  of  the  Commission. 

3  Aguirre  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2430-2437;  Houard  (U.  S.) 
V.  Spain,  Feb.  12,  1871,  ibid.  2428.  Art.  Ill  of  convention  between  Mexico  and 
China,  Dec.  16,  1911,  for  payment  of  indemnity  by  Mexico  for  mob  violence  against 
Chinese  during  revolution  of  1910.    Suppl.  to  8  A.  J.  I.  L.  (1914),  148. 

*  Whitney,  Adm.,  v.  U.  S.,  Act  of  Jan.  20,  1885,  27  Ct.  CI.  122;  The  Apollo  v.  U.  S., 
35  Ct.  CI.  411.  By  art.  9  of  the  treaty  of  Feb.  22,  1819  with  Spain  (Malloy's  Treaties, 
1910,  II,  1654)  the  U.  S.  had,  for  a  consideration,  released  Spain  from  liability  for 
these  condemnations,  and  agreed  to  make  satisfaction  to  its  own  citizens.  Infra, 
p.  379. 

<*  The  Apollo  V.  U.  S.,  Act  of  Jan.  20,  1885,  35  Ct.  CI.  411. 


POWER    TO    SETTLE,     COMPROMISE,    RELEASE    OR    ABANDON    CLAIM        369 

to  have  been  regarded  as  liable  for  condemnations  of  American  prizes 
in  her  territory.^  For  similar  acts  in  Dutch  territory  during  the  Napo- 
leonic control  of  Holland,  France  and  not  Holland  was  held  liable  by 
the  commission  under  the  treaty  of  July  4,  1831,-  especially  as  Holland 
appeared  to  have  been  released  from  responsibility  by  the  United  States. 
In  the  case  of  a  seizure  made  by  French  privateers  in  Swedish  waters, 
a  protest  by  the  United  States  to  Sweden  and  the  absence  of  any  com- 
plaint against  France  was  considered  an  election  to  hold  Sweden  liable.^ 
The  fact  that  the  United  States  had  regarded  France  and  not  Spain 
as  Uable  for  the  condemnation  of  vessels  taken  into  Spanish  ports,  when 
the  prize  proceedings  were  conducted  in  French  territory,  was  held 
by  the  Court  of  Claims  to  release  Sweden  and  the  Netherlands  from 
liabiUty  arising  out  of  similar  circumstances,'* 

With  the  power  to  refuse  to  present  the  claim,  or  to  abandon  it  at 
any  time  after  its  espousal,  the  government  has  necessarily,  as  an 
incident  of  its  control  over  it,  the  right  to  modify  or  reduce  the  claim 
in  amount  "*  and  to  accept  such  settlement  in  amount  or  kind  as  may 
in  its  opinion  appear  reasonable  under  the  circumstances.  The  nego- 
tiations for  settlement,  therefore,  are  usually  conducted  between  gov- 
ernment and  government.^    When  the  right  to  negotiate  is  granted  to 

'  Convention  of  March  28,  1830,  Moore's  Arb.  4549,  4563;  Amer.  St.  Pap.,  For. 
Rel.  Ill,  384,  505. 

^  Moore's  Arb.  4473,  quoting  Kane's  notes. 

3  The  Reliance  v.  U.  S.,  Act  of  Jan.  20,  1885,  41  Ct.  CI.  67.  The  fact  that  the 
owners  filed  a  claim  against  Sweden  was  corroborative  evidence  of  the  election  of 
Sweden.  In  theory,  the  government  might  have  disregarded  claimant's  election  and 
looked  to  France. 

'  The  Happy  Return  v.  U.  S.,  Act  of  Jan.  20,  1885,  37  Ct.  CI.  262,  268.  The  U.  S. 
was  regarded  as  having  overlooked  the  abuse  of  the  right  of  asylum  by  these  neutral 
countries. 

'  See,  e.  g.,  the  interesting  case  of  the  Lautardo  (Chile)  v.  Colombia  in  which,  after 
a  settlement  had  been  agreed  upon  and  partly  liquidated,  the  payment  of  the  unpaid 
balance  was  in  part  waived  by  Chile  on  the  equitable  ground  that  Panama,  originally 
responsible  for  the  injury,  no  longer  belonged  to  Colombia.  For.  Rel.,  1907,  I,  293. 
See  also  Labaree  claim  v.  Persia,  For.  Rel.,  1906,  1208;  and  Mather's  claim  (Gt.  Brit.) 
V.  Tuscany,  1852,  42  St.  Pap.  474,  495. 

^E.  g.,  Claims  of  citizens  of  U.  S.  for  deportation  from  South  Africa.  Mr.  Hay, 
Sec'y  of  State,  to  Mr.  White,  Oct.  26,  1901,  For.  Rel.,  1901,  216.  Settlement  of 
Emery  claim  v.  Nicaragua,  Sept.  18,  1909,  For.  Rel.,  1909,  464;  Great  Britain  and 
Chile,  Sept.  29,  1887,  78  St.  Pap.  774;  Etzel  (U.  S.)  v.  China,  Mr.  Loomis,  Acting 
Sec'y  of  State,  to  Mr.  Conger,  July  15,  1904,  For.  Rel.,  1904,  176. 


370  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

the  citizen,  as  it  occasionally  is,  the  government  must  express  its  approval 
of  the  settlement  before  it  may  be  considered  as  final,  and  the  claim 
withdrawn  from  the  files  of  the  Department.^ 

It  not  infrequently  happens  that  a  form  of  settlement  satisfactory 
to  the  government  is  quite  unsatisfactory  to  the  claimant.  For  ex- 
ample, the  government  may  accept  an  apology  from  a  foreign  country 
or  accept  the  punishment  of  the  wrongdoing  officer  for  the  false  arrest 
of  an  American  citizen  as  a  sufficient  reparation  for  the  injury,  not- 
withstanding the  demand  of  the  citizen  for  pecuniary  indemnity.^ 
In  Waller's  claim  against  France,  the  claimant's  release  from  imprison- 
ment and  pardon  of  his  offense,  on  condition  that  the  United  States 
should  make  no  claim  on  his  behalf  was  regarded  by  the  government 
as  a  satisfactory  adjustment  of  the  case,  notwithstanding  claimant's 
protest.^  It  is  evident,  therefore,  that  the  citizen,  having  made  his 
claim  the  subject  of  international  negotiation,  is  bound  by  a  settle- 
ment effected  and  considered  satisfactory  by  his  government.  On 
the  other  hand,  as  will  be  observed  presently,  a  direct  settlement 
between  the  wrongdoing  government  and  the  citizen  or  his  waiver 
of  the  right  to  make  a  claim  in  no  way  affects  the  right  of  his 
government  to  demand  such  indemnity  as  it  may  consider  the  offense 
to  warrant. 

The  effect  upon  international  commissions  of  the  previous  diplomatic 
negotiations  connected  with  the  prosecution  or  adjustment  of  a  claim 
depends  very  largely  upon  the  terms  of  the  protocol  under  which  the 
commission  acts.  As  a  general  principle,  arbitral  tribunals  have  re- 
fused to  be  bound  by  conclusions  and  opinions  reached  by  the  political 

'  Scandella  claim  v.  Venezuela,  For.  Rel.,  1898,  1137-1147;  S.  S.  Haitian  Republic 
claim  V.  Haiti,  S.  Ex.  Doc.  69,  50th  Cong.,  2nd  sess.,  171,  241;  Panama  Star  and 
Herald  claim  v.  Colombia,  For,  Rel.,  1899,  232.  A  private  settlement  was  considered 
a  bar  to  an  international  claim  in  Bours  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's 
Arb.  2430. 

2  St.  Bris'  claim  v.  Belgium,  For.  Rel.,  1901,  17;  Torrey  (U.  S.)  v.  Venezuela,  Feb.  17, 
1903,  Ralston,  162,  Morris'  Rep.  331,  quoting  from  letters  of  Sec'y  Evarts  and  Sec'y 
Bayard.    Paul,  Conunissioner,  allowed  Torrey  $250. 

^  For.  Rel.,  1895,  258.  If  the  Department  considers  the  offer  of  a  foreign  country 
tcj  a  claimant  fair,  it  will,  of  course,  decline  to  press  his  demand  for  a  larger  sum. 
Sec  also  claim  of  Schooner  B.  L.  Allen  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb. 
2430,  note;  and  CrosswoU's  claim  (Gt.  Brit.)  v.  Haiti,  1887,  78  St.  Pap.  1353. 


NO    OBLIGATION   TO    CONSULT   CLAIMANT  371 

department  of  the  government  concerning  the  international  responsi- 
bihty  of  foreign  states,  or  to  consider  as  necessarily  valid  claims  those 
which  the  claimant  government  had  officially  espoused  and  pressed.^ 
As  in  i^rivate  law,  an  offer  of  settlement  or  compromise  made  in  dip- 
lomatic negotiations  could  hardly  be  construed  by  an  international 
tribunal  as  an  admission  of  the  justice  of  the  claim  or  of  international 
liability.-  Nor  does  an  offer  to  accept  a  reduced  sum  bind  an  arbitral 
tribunal  to  limit  its  award  to  that  amount.^ 

§  145.  No  Obligation  to  Consult  Claimant. 

While  it  frequently  happens  that  during  the  course  of  a  diplomatic 
adjustment  of  a  claim  the  Department  of  State  consults  the  claimant 
in  the  various  stages  of  the  negotiations  and  usually  endeavors  to  ar- 
range a  settlement  satisfactory  to  the  claimant,^  there  is  no  legal  ob- 
ligation of  any  kind  to  secure  the  claimant's  sanction  or  assent  to  any 
steps  undertaken.^  Indeed,  as  already  observed,  disposition  may  be 
made  of  the  claim  as  expediency  dictates,  without  his  assent  or  even 
against  his  protest.^ 

The  government  may  prosecute  a  claim  arising  out  of  an  injur}'  to 
a  citizen  notwithstanding  the  fact  that  the  citizen  declines  to  make 

*  Opinion  of  Spanish  Treaty  CI.  Com.,  Special  Rep.  of  W,  E.  Fuller,  24;  Hooper 

V.  U.  S.,  Act  of  Jan.  20,  1885,  22  Ct.  CI.  408. 

2  Constanda,  Good  Return  and  Medea  (U.  S.)  v.  Colombia,  Feb.  10,  1864  (Bruce, 
Umpire),  Moore's  Arb.  2742.  In  this  case,  it  was  held  that  the  mere  presentation  of 
a  claim  by  a  diplomatic  agent  is  not  binding  on  his  government,  ibid.  2742.  Nor  is 
his  assurance  that  a  claim  against  the  U.  S.  would  be  paid.  Meade  v.  U.  S.,  9  Wall. 
691. 

3  The  Cannda  (U.  S.)  v.  Brazil,  Mar.  14,  1870,  Moore's  Arb.  1733,  1745;  La  Fon- 
taine, 133. 

*  Mr.  Ohiey,  Sec'y  of  State,  to  Mr.  McKenzie,  Apr.  24,  1896,  For.  Rel.,  1896,  492 
(Claim  of  Hydrographic  Commission  of  the  Amazon  v.  Peru);  Claim  of  White  v. 
Mexico,  Mr.  Ryan  to  Mr.  Blaine,  May  20,  1890,  For.  Rel.,  1890,  635.  The  protocol 
of  arbitration  may  occasionally  show  that  the  claimant  has  consented  to  the  arbitra- 
tion. May  (U.  S.)  v.  Guatemala,  Feb.  23,  1900,  For.  Rel.,  1900,  657;  MaUoy's 
Treaties,  I,  871-872. 

5  Mr.  Olney,  Sec'y  of  State,  to  the  Attorney-General,  Oct.  7,  1895,  Moore's  Dig. 

VI,  1021. 

*  Supra,  p.  366.  Brief  of  Solicitor  for  U.  S.  in  case  of  Samuel  C.  Reid  et  al.  (Brig 
General  Armstrong)  v.  U.  S.,  before  Court  of  Claims,  Sen.  Misc.  Doc.  140,  3^th  Cong., 
1st  sess.,  38—40.    Opinion  of  Judge  Blackford,  ibid.  111-113. 


372  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS    ABROAD 

any  complaint^  or  renounces  his  right  to  an  indemnity.^  Neverthe- 
less, unless  the  offense  is  particularly  flagrant  or  may  be  deemed  a 
national  affront,  the  individual's  waiver  of  a  right  to  indemnity  weak- 
ens the  moral,  if  not  the  legal,  right  of  his  government  to  demand  rep- 
aration, and  the  government  may  well  consider  itself  justified  in  de- 
sisting from  pressing  a  claim  waived  by  the  individual  who  actually 
sustained  injury.^  Arbitral  tribunals  have  regarded  a  private  waiver  * 
of  a  claim  as  a  bar  to  an  international  reclamation. 

It  will  be  seen  hereafter  "  that  the  individual  cannot  renounce  or 
contract  away  the  right  of  his  government  to  intervene  in  his  behalf. 
While  he  may  renounce  a  personal  right  or  privilege,  he  does  not  rep- 
resent the  government  and  therefore  is  incompetent  to  renounce  a 
right,  duty,  or  privilege  of  the  government.  The  principle  may  be 
supported  on  the  theory  that  the  wrongful  act  is  a  tort  and  crime  com- 
bined, each  giving  rise  to  an  independent  right  of  action. 

§  146.  Power  to  Determine  Opportunity  for  Pressing  Claim. 

Not  only  can  the  government  in  its  discretion  estimate  the  damage 
sustained  by  its  citizen  and  determine  upon  the  proper  amount  and 
items  for  which  an  international  claim  may  justly  be  prosecuted,  but 
it  may  decide  for  itself  upon  the  appropriate  time  for  advancing  the 
claim.  Conditions  of  various  kinds  have  arisen  from  time  to  time  which 
have  led  the  Department  of  State  merely  to  place  on  file  claims  against 
certain  countries,  until  in  its  opinion  a  propitious  moment  for  their 
pressure  presented  itself.  At  the  present  time,  for  example,  the  De- 
partment probably  considers  it  useless  to  press  claims  against  Mexico. 

'  This  happened  in  certain  cases  of  missionaries  murdered  in  the  Lienchou  riots, 
1904. 

2  British  Vice-Consul  Magee  in  1874  expressly  renounced  all  indemnity  for  an  out- 
rage against  him  committed  by  a  local  governor  in  Guatemala,  on  the  ground  that 
his  personal  interests  would  suffer  thereby.  Notwithstanding  the  renunciation,  and 
u  salute  to  the  British  flag  by  Guatemala,  Great  Britain  pressed  and  collected  a  claim 
for  £10,000  indemnity.    65  St.  Pap.  875,  at  900;  Baty,  171. 

'  Jencken's  claim  (Gt.  Brit.)  v.  Spain  was  therefore  dropped  by  Great  Britain. 
Mr.  Hammond  to  Mr.  Tomkins,  Nov.  2,  1870,  62  St.  Pap.  1003;  Baty,  156. 

Marr  and  Hurst  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2713  (it  was  re- 
garded aa  a  private  settlement  of  the  claim). 

6  Infra,  p.  810. 


government's  power  to  renounce  indemnity     373 

Other  considerations  operate  to  prevent  this  government  from  setthng 
by  arbitration  its  numerous  claims  against  Spain,  The  various  at- 
tempts to  obtain  the  signature  by  Spain  of  a  protocol  of  arbitration 
have  come  to  naught  upon  the  refusal  of  the  United  States  to  submit 
the  East  Florida  claims  to  arbitration,  a  refusal  based  apparently 
rather  upon  traditional  repetition  and  fear  of  the  Senate's  declining 
to  ratify  an  agreement  to  arbitrate  the  claims  than  upon  the  justice 
of  the  American  position  under  the  treaty  of  1819.  In  many  cases, 
the  financial  weakness  of  the  defendant  state  or  its  political  instability 
has  led  the  Department  to  abstain  from  pressing  the  claims  of  its 
citizens.  Strained  diplomatic  relations  furnish  a  good  ground  for  de- 
clining to  present  pecuniary  claims,  an  act  which  might  only  aggravate 
a  delicate  political  situation.  The  pressure  of  a  purely  legal  claim,  there- 
fore, is  subject  to  every  political  consideration  which  affects  the  sensitive 
machinery  of  diplomacy,  with  the  result  that  many  meritorious  claims 
have  rested  for  years,  unredressed,  in  the  archives  of  the  Department 
of  State  and  in  the  Foreign  Offices  of  other  governments.  There  are 
few  stronger  arguments  for  the  submission  of  international  pecuniary 
clauns  to  the  adjudication  of  a  permanent  international  tribunal. 

§  147.  Government's  Power  to  Renounce  Indemnity. 

It  has  already  been  observed  that  the  government  may  abandon 
a  claim  against  a  foreign  state  whenever  it  becomes  convinced  of  the 
fraud  or  disqualification  of  the  claimant  or  of  the  falsity  or  injustice 
of  the  claim. ^  A  claim  may  also  be  renounced  or  surrendered  for  rea- 
sons of  pubUc  policy,  and  the  government  escape  legal  Uability,  for 
whatever  the  equitable  considerations  in  favor  of  just  compensation 
to  an  individual  whose  private  claim  is  relinquished  for  a  public  ad- 
vantage, the  government  must  be  the  sole  judge  of  the  means  it  is 
warranted  in  using  in  the  pressure  of  a  claim;  and  if  it  considers  that 
the  pubUc  interest  does  not  justify  a  resort  to  certain  measures,  e.  g., 
war,  it  may  sacrifice  the  private  interest  for  the  public  good.^  The 
government  is  not  often  confronted  with  such  an  alternative,  for  ar- 

1  Su-pra,  p.  367.  U.  S.  v.  La  Abra  Silver  Mining  Co.,  29  Ct.  CI.  432,  175  U.  S.  423; 
Frelinghuysen  v.  Key,  110  U.  S.  63;  Moore's  Dig.  VII,  §  1083. 

*  See  extract  from  the  Memoirs  of  J.  Q.  Adams,  in  Moore's  Dig.  VI,  1026. 


374  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

bitration  has  fortunately  offered  a  means  of  disposing  of  many  claims 
which  prove  impossible  of  settlement  by  diplomatic  negotiation.  Nu- 
merous claims,  however,  might  be  mentioned  in  which  a  foreign  govern- 
ment, denying  its  liability  in  the  premises,  has  refused  to  submit  the 
issue  to  arbitration,  and  the  claimant  government,  rather  than  resort 
to  force,  with  its  necessary  consequences,  has  felt  itself  constrained 
or  considered  it  preferable  to  drop  the  matter  and  abandon  the  claim. 
The  power  of  the  government,  by  treaty  or  otherwise,  to  renounce  or 
relinquish  the  claims  of  its  citizens,  is  indisputable.^  The  circumstances 
under  which  the  government,  by  reason  of  such  renunciation  of  the 
claims  of  its  citizens,  may  be  deemed  to  incur  liability  to  the  individual 
claimant,  will  be  considered  presently. 

The  complete  control  of  the  government  over  the  claim  of  its  citizen 
does  not  cease  when  an  award  upon  it  has  been  made  by  an  arbitral 
tribunal.  This  fact  has  been  illustrated  in  several  cases,  where  awards 
which  the  government  regarded  as  having  been  unjustly  obtained, 
w^ere  either  not  collected  from  the  defendant  states,  or  after  having 
been  paid,  were  returned  in  their  entiret3^  In  the  case  of  Lazare  against 
Haiti,  Secretary  Bayard  set  aside  an  arbitral  award  in  claimant's  favor 
on  the  ground  that  newly  discovered  evidence  indicated  the  injustice 
of  the  award,  and  that  there  were  irregularities  in  the  arbitral  proceed- 
ings and  errors  in  the  award. ^  In  the  case  of  Pelletier  against  Haiti 
an  award  in  claimant's  favor  was  set  aside  by  Secretarj'^  Bayard  on 
the  ground  that  the  arbitrator  had  been  mistaken  in  his  jurisdiction 
and  that  the  claim  should  have  been  dismissed,  that  the  claimant  was 
guilty  of  turpitude,  and  that  the  Executive  should  refuse  to  enforce 

'  See,  e.  g.,  the  renunciation  of  American  claims  against  Spain,  treaty  of  Feb.  22, 
1819,  art.  9,  Malloy's  Treaties,  II,  1654;  Meade  v.  U.  S.,  2  Ct.  CI.  224,  9  Wall.  691; 
Mutual  release  of  claims  in  treaty  of  Feb.  17,  1834,  art.  3,  Malloy's  Treaties,  II,  1660; 
Treaty  of  Dec.  10,  1898  with  Spain,  art.  7,  Malloy's  Treaties,  II,  1692;  Spanish  claims 
against  Venezuela,  treaty  of  June  21,  1898  cited  in  Corcuera  (Spain)  v.  Venezuela, 
Apr.  2,  1903,  Ralston,  936;  Betancourt,  ibid.  940;  Certain  Danish  claims  against 
U.  S.  relinquished  in  convention  of  March  28,  1830,  Moore's  Arb.  4549,  4563;  Con- 
vention between  Russia  and  Roumania,  Apr.  21-May  3,  1882,  for  relinquishment  of 
claims  growing  out  of  war  with  Turkey  (damages  caused  by  passage  of  Russian 
armies),  74  St.  Pap.  297. 

'Lazare  (U.  S.)  v.  Haiti,  May  24,  1884,  Moore's  Arb.  1749,  1779,  1793, 
1800. 


\ 


government's  power  to  renounce  indemnity  375 

an  unconscionable  award.  ^  In  both  cases,  the  Department  of  State 
declined  to  collect  the  awards  from  Haiti. 

In  the  ease  of  the  Caroline  against  Brazil,  the  United  States,  by  act 
of  Congress,  returned  to  Brazil  an  indemnity  which  had  been  paid  to 
a  diplomatic  representative  of  this  government,  the  Attorney-General 
having  advised  that  Brazil  was  not  internationally  liable  on  the  claim. ^ 

In  some  instances  where  awards  were  made  in  favor  of  the  United 
States  on  claims  which  were  subsequently  found  to  have  been  fraudu- 
lent this  government  has  returned  to  the  foreign  nation  any  indemnity 
it  may  have  paid,  and  this  notwithstanding  the  fact  that  a  part  of  the 
indemnity  had  already  been  distributed  to  the  claimants.  The  most 
notable  cases  under  this  head  are  the  claims  of  Weil  and  La  Abra 
Silver  Mining  Co.  against  Mexico  in  which — on  what  proved  later  to 
have  been  shameless  fraud  and  perjury — awards  were  obtained  from 
the  Umpire  of  the  mixed  commission  under  the  treaty  of  July  4,  1868. 
After  a  re-investigation  of  the  cases  b}?-  the  Court  of  Claims,  under 
the  authority  of  Congress,  had  established  the  fraudulent  character 
of  both  claims,  the  United  States  first  returned  to  Mexico  the  undis- 
tributed balance  paid  on  the  claims  and  subsequently  repaid  the  in- 
stallments already  distributed."^  In  Frelinghuysen  v.  Key,  Chief  Jus- 
tice Waite  declared  that  "the  government  which  has  been  so  imposed 
on  as  to  prosecute  a  fraudulent  claim  is  in  duty  bound  to  repudiate  the 
act  and  make  reparation  to  the  aggrieved  state." 

The  United  States  has  on  several  occasions,  as  a  matter  of  equity 
or  friendship,  returned  to  foreign  countries  portions  of  indemnities 
which,  upon  allotment  to  entitled  claimants,  proved  to  have  exceeded 
the  amount  of  injury  sustained.^ 

1  PeUetier  (U.  S.)  v.  Haiti,  Moore's  Arb.  1749,  1757,  1794,  1800. 

2  Moore's  Arb.  1342,  note.  Some  of  the  indemnity  paid  to  the  diplomatic  repre- 
sentative never  reached  the  Treasury,  it  seems. 

'  Moore's  Arb.  1324  el  seq.;  Decisions  of  the  Court  of  Claims  in  the  La  Abra  case. 
32  Ct.  CI.  4.32,  175  U.  S.  423  and  in  the  Weil  case,  35  Ct.  CI.  42;  Return  to  Mexico 
of  undistributed  balance,  For.  Rel.,  1900,  781-784;  Appropriation  for  repayment  of 
distributed  installments,  Act  of  Feb.  14,  1902,  32  Stat.  L.  5.  The  fraudulent  award 
which  was  set  aside  in  the  Gardiner  case  (Moore's  Arb.  1255)  was  that  of  a  domestic 
commission. 

*  Repayment  of  part  of  Japanese  indemnity  fund.  Act  of  Feb.  22,  1883,  22  Stat. 
L.  421,  Sen.  Doc.  231,  pt.  1,  56th  Cong.,  2nd  sess.,  405;  Return  of  part  of  Chinese 


376  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

§  148.  Government  not  Liable  for  Mismanagement. 

The  plenary  control  of  the  government  over  a  claim  of  its  citizen  is 
demonstrated  by  the  fact  that  the  failure  to  fulfill  the  political  obliga- 
tion of  diplomatic  protection  or  the  mismanagement  of  the  case  so 
as  to  deprive  the  individual  claimant  of  redress  does  not  subject  the 
state  to  any  pecuniary  liability.  Notwithstanding  various  dicta  to 
the  effect  that  the  government  must  either  procure  redress  for  its 
citizens  or  itself  reimburse  them/  it  seems  clear  that  under  Anglo- 
American  law  no  legal  liability  can  attach  to  the  government  for  failure 
or  negligence  in  the  matter  of  protection,  a  principle  justifiable  either 
on  the  theory  that  a  political  and  discretionary  act  escapes  judicial 
review  and  control  or  on  the  ground  that  the  government  is  not  liable 
in  tort  and  cannot  be  sued  without  its  consent.^  In  the  case  of  Alfred 
Benson,  a  petition  to  Congress  to  obtain  relief  for  a  failure  of  the  ad- 
ministration of  President  Fillmore  to  carry  out  its  assurances  of  pro- 
tection to  the  memorialist  in  the  removal  of  guano  from  the  Lobos 
Islands  received  the  support  of  a  Senate  committee,^  but  appears  not 
to  have  been  favored  with  an  appropriation  by  Congress. 

In  French  law,  the  immunity  of  the  government  from  liability  for 
failure  to  protect  or  to  secure  redress,  or  for  mismanagement  of  the 
claim,  is  based  upon  the  theory  of  an  ade  de  gouvernement,^  which  es- 
capes judicial  review,^  or,  as  Bremond  explains  it,  the  abseuce  of  any 

indemnity  fund,  Act  of  Mar.  3,  1885,  23  Stat.  L.  436;  Moore's  Arb.  4627,  4637;  Sen. 
Doc.  231,  pt.  1,  56th  Cong.,  2nd  sess.,  391-393;  Remission  of  part  of  Boxer  indem- 
nity, Joint  Res.,  May  25,  1908,  For.  Rel.,  1908,  64.  Such  a  surplus  is  not  always 
returned,  e.  g.,  Great  Britain  still  retains  apparently  an  undistributed  portion  of  the 
French  indemnity  under  the  conventions  of  1815  and  1818,  and  the  United  States  a 
small  portion  of  the  Alabama  award. 

'  The  Lord  Chancellor  in  Baron  de  Bode's  case,  16  L.  and  Eq.  R.  23.  Chief  Justice 
Parker  in  Farnura  v.  Brooks,  9  Pick,  238.  See  also  Rutherforth's  Institutes,  Cam- 
bridge, 1756,  II,  ch.  IX,  §  11,  p.  514. 

^  These  questions  were  exhaustively  argued  in  the  cases  of  the  Brig  General  Arm- 
strong, Sen.  Misc.  Doc.  140,  35th  Cong.,  1st  sess.  (in  which  Congress  in  1882  on 
patriotic  grounds  voted  some  $70,000  to  the  claimants),  and  of  R.  W.  Meade,  H. 
Rep.  226,  36th  Cong.,  1st  sess.  (Court  of  Claims).  See  also  Atty.  Gen.  Gushing  in 
7  Op.  Atty.  Gen.  239. 

5  Sen.  Rep.  397,  34th  Cong.,  3rd  sess.,  23-24. 

*  Supra,  p.  134. 

*  Laferri^re  states  that  it  is  a  constant  rule  of  the  Conseil  d'Etat  to  deny  the  sua- 
bility of  the  state  for  the  refusal  of  the  Minister  of  Foreign  Affairs  to  support  a  claim 


GOVERNMENT   NOT   LIABLE   FOR   MISMANAGEMENT  377 

legal  obligation  of  or  individual  right  to  protection,  which  is  a  purely 
political,  sovereign  and  discretionary  act,  responsibility  for  which  is 
incurred  to  parliament  alone.  ^ 

The  same  freedom  from  judicial  control,  by  mandamus  or  otherwise, 
extends  to  the  Executive's  discretion  in  the  distribution  of  awards  re- 
ceived from  foreign  governments,^  individual  claimants  having  no  lien 
upon  the  fund  received.  Payment  by  the  government  to  a  claimant, 
however,  does  not  determine  the  question  of  ownership,  which  is  then, 
as  between  contesting  beneficiaries,  wholly  within  the  jurisdiction  of 
the  courts,  ^ 

The  abandonment  or  surrender  of  a  private  claim  imposes  no  legal 
liability  upon  the  state,  under  any  circumstances,  it  is  believed.  When, 
however,  a  private  claim  is  used  as  a  set-off  to  obtain  certain  national 
advantages  an  equitable  obligation  arises  to  reimburse  the  individual 
whose  private  right  has  thus  been  sacrificed  for  the  public  good.  In 
a  noteworthy  decision  of  the  Court  of  Claims  in  a  French  Spoliation 
case,  that  Court,  under  the  authority  of  Congress,  translated  this 
obligation  into  a  legal  liability,  by  holding  the  government  responsible 
to  its  nationals  for  the  French  spoliation  claims  which  had  been  sur- 
rendered to  France  in  exchange  for  a  release  from  the  obligations  of 
the  treaties  of  1778  and  1788.^ 

against  a  foreign  nation  or  take  any  particular  measures  of  diplomatic  protection. 
Laferriere,  op.  cit.,  II,  48;  Pradier-Foder6,  Cours  de  droit  diplomatique,  2nd  ed., 
Paris,  1899,  p.  544,  note.  See  the  following  decisions:  Du  Penhoat,  Apr.  26,  1855, 
Lebon,  313;  Lucas,  Feb.  1,  1851,  Lebon,  86;  Jecker,  Nov.  18,  1869,  Lebon,  890; 
Poujode,  Sirey,  1906,  3,  158  and  particularly  Dupuy,  Jan.  12,  1877,  Lebon,  48.  For 
English  law  on  the  general  question,  see  W.  W.  Lucas,  "The  legal  status  of  sover- 
eignty" in  24  Juridical  Rev.  (1912),  185-200. 

*  Bremond  in  article  "Actes  de  gouvernement "  in  5  Rev.  de  Dr.  Pub.  (1896),  57. 
2  Frelinghuysen  ;;.  Key,  110  U.  S.  63;  U.  S.  ex  rel.  Boynton  v.  Blaine,  139  U.  S.  306. 

The  French  law  appears  to  be  the  same,  adopting  the  theory  that  the  distribution  of 
the  fund  is  a  part  of  the  original  diplomatic  act,  an  acAe  de  gouvernement.  See  the 
following  cases  before  the  Conseil  d'Etat:  Courson,  Jan.  5,  1847,  Lebon,  1;  Dubois, 
Apr.  30,  1867,  Lebon,  421.  Bremond  contests  this  view  (op.  cit.,  58),  holding  that 
by  the  receipt  of  the  fund,  the  state  has  by  a  kind  of  novation  become  the  debtor, 
and  should  be  subjected  to  suit  by  individual  claimants. 

'  Infra,  §  157.  See  also  the  French  case  of  Pontus  before  the  Council  of  State, 
May  25,  1832,  Lebon,  160. 

*  Infra,  §  149.  See  also  Gray  v.  U.  S.,  21  Ct.  CI.  340,  392  and  Ship  Jane,  Adams 
f).  U.  S.,  Act  of  Jan.  20,  1885,  23  Ct.  CI.  226,  253. 


378  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

§  149.  Circumstances  under  which  Government  is  Liable. 

Wharton  in  his  Digest  of  International  Law  makes  the  following 
statement: 

"Should  the  Government  of  the  United  States,  either  by  its  neglect 
in  pressing  a  claim  against  a  foreign  government  or  by  extinguishing 
it  as  an  equivalent  for  concessions  from  such  government,  impair  the 
claimant's  rights,  it  is  bound  to  duly  compensate  such  claimant."  ^ 

The  doctrine  that  neglect  in  the  prosecution  of  a  claim  can  impose  a 
governmental  liability,  is  not  believed  to  be  supported  by  anything 
but  certain  loose  dida,^  and  is  opposed  by  law  and  practice.^  On  the 
other  hand,  the  principle  that  the  renunciation  of  private  claims  as 
an  equivalent  for  national  advantages  imposes  upon  the  government 
an  obligation  to  compensate  the  individual  claimants  whose  property 
right  has  thus  been  used  and  bartered  away  for  the  public  good  re- 
ceived unchallengable  support  in  several  well-reasoned  opinions  of 
the  Court  of  Claims  in  French  Spoliation  cases,  referred  to  the  court 
under  the  Act  of  January  20,  1885.  The  relinquishment  by  the  United 
States  to  France  of  the  claims  of  its  citizens  arising  out  of  unlawful 
captures  by  French  vessels  in  exchange  for  the  relinquishment  by 
France  of  her  national  claims  against  the  United  States  arising  out  of 
the  unfulfilled  obUgations  of  the  United  States  under  the  treaty  of 
1778  was  held  to  render  the  United  States  legally  liable  to  the  American 
claimants  whose  property  rights  had  thus  been  surrendered.*     The 

1  Wharton,  II,  §  220,  p.  556. 

^  Cited  supra,  p.  376. 

^  Supra,  p.  376. 

*  For  the  history  of  the  French  Spoliation  Claims,  see  Gray  v.  U.  S.,  21  Ct.  CI.  340 
and  Gushing  v.  U.  S.,  22  Ct.  CI.  1.  See  also  Geo.  A.  King  in  6  A.  J.  I.  L.  reprinted  as 
Sen.  Doc.  964,  62nd  Cong.,  3rd  sess.  (1912);  The  French  spoHation  claims  with  special 
reference  to  insurance  companies,  statements  of  J.  Henry  Scattergood,  Wash.,  G. 
P.  O.  1910.  Wharton,  II,  714-728;  Moore's  Dig.  VI,  §  1056.  The  principal  cases 
in  which  the  origin  and  nature  of  the  claims  were  discussed  are  the  Gray  and  Cushing 
cases,  Ship  Tom,  29  Ct.  CI.  68;  39  Ct.  CI.  290;  Adams  v.  U.  S.,  23  Ct.  CI.  226  (dis- 
cussing effect  of  art.  IV  of  the  treaty  of  1800,  and  incidentally  art.  II  under  which 
tlu!  French  Spoliation  Claims  arose;  Judge  Davis  considered  erroneous  the  rulings 
of  the  commission  under  the  treaty  of  1831,  construing  art.  IV,  Kane's  notes,  84); 
Field  V.  U.  S.,  27  Ct.  CI.  224;  Schooner  Betsy,  44  Ct.  CI.  506;  Brigs  Fanny  and  Hope, 
46  Ct,  CI.  214.  In  the  Spanish  Treaty  Claims  Conmiission  (Opin.  of  Commissioner 
Chandler),  it  was  held  that  the  release  of  private  claims  in  the  treaty  of  1898  involved 
an  assumption  of  payment  by  the  U.  S.     Opinions  filed  Dec.  5,  1903,  p.  87. 


CIRCUMSTANCES    UNDER   WHICH    GOVERNMENT   IS   LIABLE  379 

reasoning  of  the  Court  is  better  than  the  judicial  authority  upon  which 
it  relies,  namely,  a  dictum  of  the  Lord  Chancellor  in  De  Bode  v.  The 
Queen  (1851),  3  Clark's  House  of  Lords,  465,  although  the  authority 
of  Vattel  was  convincingly  invoked.^  Notwithstanding  these  decisions 
of  the  Court  of  Claims,  the  Supreme  Court  has  held  that  the  appro- 
priations by  Congress  for  the  payment  of  French  Spoliation  awards 
are  in  the  nature  of  a  gratuity,  a  matter  of  grace  and  not  of  right. - 

On  several  other  occasions,  e.  g.,  in  the  treaties  of  1819,  1834  and 
1898  with  Spain  and  in  the  treaty  of  1831  with  France,  the  United  States 
has  released  the  claims  of  its  citizens  in  return  for  a  lump  sum  indemnity 
which  it  then  undertook  to  distribute  among  the  claimants.  In  the 
treaty  of  1819,  the  cession  of  Florida  was  the  consideration  for  the 
surrender  of  American  claims  against  Spain,  the  United  States  agree- 
ing to  indemnify  its  citizens  to  the  extent  of  five  million  dollars.  In 
this  connection,  the  government  has  committed  a  great  injustice  to 
an  American  citizen  by  denying  all  relief  in  the  Meade  claim.  Briefly 
stated,  Meade's  claim,  involving  a  large  sum,  was  one  of  those  sur- 
rendered to  Spain  as  a  consideration  for  the  cession  of  Florida.  Between 
the  signing  and  the  ratification  of  the  treaty  of  1819,  Meade  liquidated 
his  claim  with  Spain  and  secured  by  decree  an  acknowledgment  thereof. 
The  domestic  commission  under  the  treaty  of  1819  regarded  the  decree 
as  evidence  of  a  liquidated  claim  acquired  subsequent  to  the  signing 
of  the  treaty  and  hence  not  binding  on  the  United  States.  Only  the 
unliquidated  claim  did  they  consider  within  their  jurisdiction,  the 
onl}'^  admissible  evidence  in  support  being  the  vouchers  then  in  the 
possession  of  Spain,  which  on  request  of  the  government,  Spain  re- 
fused to  transmit.  The  commission's  labors  came  to  an  end  before 
the  vouchers  could  be  obtained,  leaving  Meade's  claim  unpaid.  Aft-er 
numerous  unsuccessful  appeals  for  Congressional  relief,  the  claim  was 
ultimately  taken  to  the  Court  of  Claims,  Meade  basing  his  main  con- 
tention for  the  liability  of  the  United  States  upon  the  ground  that  the 
government  had  been  negligent  in  not  diligently  prosecuting  his  claim 

iGray  v.  U.  S.,  21  Ct.  CI.  340,  391,  citing  Vattel,  Bk.  IV,  ch.  II,  §  12  (see  alao 
Bk.  I,  §  244)  who  regards  the  state's  disposal  of  the  private  property  of  its  citizena 
for  the  public  advantage  as  the  exercise  of  eminent  domain. 

2  Bkgge  V.  Balch,  162  U.  S.  439. 


380  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

and  obtaining  from  Spain,  as  provided  by  treaty,  the  supporting  vouch- 
ers. The  Court  of  Claims  ^  held  that  the  commission  had  made  a 
mistake  in  its  ruling  in  the  matter  of  evidence,  but,  while  admitting 
the  inequitable  result,  dismissed  the  claim  on  jurisdictional  grounds.^ 
On  appeal  to  the  Supreme  Court,  the  dismissal  of  the  claim  by  the 
original  commissioners  was  upheld  on  the  ground  that  their  jurisdic- 
tion extended  only  to  unliquidated  claims.^  Thus,  notwithstanding 
an  almost  uniform  admission  that  the  release  of  Meade's  claim  to 
Spain  as  part  of  the  consideration  for  the  cession  of  Florida  was  a  taking 
of  private  property  for  the  public  use,  the  United  States  has  shielded 
itself  behind  attenuated  technicalities  in  order  to  escape  a  just  lia- 
biUty. 

» 2  Ct.  CI.  224. 

2  Namely,  that  where  a  special  tribunal  had  been  provided  by  treaty,  no  action 
could  be  brought  in  the  Court  of  Claims.    One  of  the  three  judges  dissented. 

3  9  Wall.  691.  See  account  by  R.  Floyd  Clarke  in  1  A.  J.  I.  L.  (1907),  366,  et  seq.; 
H.  R.  226,  36th  Cong.,  1st  sess.;  Wharton,  II,  §  248,  pp.  708-714.  A  contention  in 
the  claim  of  the  Brig  General  Armstrong,  based  on  the  neglect  of  the  government  in  its 
negotiations  concerning  the  claim,  was  rejected  in  various  Congressional  reports. 


CHAPTER  IV 

DISTRIBUTION  OF  AWARDS  AND  INDEMNITIES 

§  150.  Two  Stages  of  the  Proceedings;  the  International  and  the 
Municipal. 

In  the  procedure  for  the  adjustment  of  an  international  claim  aris- 
ing out  of  injuries  sustained  by  a  citizen  there  are  two  distinct  stages, 
the  international  and  the  municipal.  The  former  constitutes  an  ap- 
peal by  nation  to  nation,  and  both  in  the  case  of  international  arbitra- 
tion and  purely  diplomatic  adjustment,  consists  in  the  determination 
of  the  validity  and  amount  of  the  claim  as  between  sovereigns.  These 
are  matters  of  international  law.  When  the  government  assumes 
the  obligation  of  paying  the  claims  of  its  citizens  upon  foreign  nations, 
referring  the  determination  of  the  merits  of  the  claims  to  a  domestic 
court  or  commission,  the  legal  questions  involved  are  likewise  decided 
according  to  the  principles  of  international  law. 

The  distribution  of  the  award  by  the  claimant  state  and  the  deter- 
mination of  questions  relating  to  the  private  ownership  of  the  award 
constitute  the  second  stage  of  the  proceedings.  These  are  matters 
to  be  decided  according  to  the  municipal  law  of  the  claimant  country, 
whether  the  award  is  made  in  a  lump  sum  for  a  group  of  claims,^  or 
in  a  specific  amount  for  the  liquidation  of  an  individual  claim.  The 
protocol  or  treaty  creating  the  international  commission  or  the  statute 

'  In  such  cases,  the  claimant  government  usually  creates  a  domestic  conunission  for 
the  determination  of  individual  claims  upon  the  lump  sum.  See,  e.  g.,  Act  of  July  13, 
1832  (4  Stat.  L.  574)  for  commission  under  treaty  with  France  of  July  4,  1831;  Act  of 
March  3,  1859  (11  Stat.  L.  408),  for  distribution  of  Chinese  indemnity  under  treaty 
of  Nov.  8,  1858.  Act  of  June  23,  1874  (18  Stat.  L,  245),  creating  court  for  distribution 
of  Alabama  award.  See  Comegys  v.  Vasse,  1  Pet.  193  and  Sheppard  v.  Taylor,  5  Pet. 
710,  under  treaty  of  1819  with  Spain,  and  Prevail  v.  Bache,  14  Pet.  95,  under  treaty 
of  1831  with  France.  A  number  of  cases  dealing  with  the  ownership  of  claims  as  be- 
tween private  parties  are  listed  in  the  Opinion  of  J.  Reuben  Clark,  Jr.,  Solicitor,  In  re 
Distribution  of  Alsop  award  (1912),  pp.  28-30. 

381 


382  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

creating  the  domestic  commission  usually  provides  the  extent  of  the 
tribunal's  jurisdiction.^ 

§  151.  Finality  of  Awards. 

The  question  has  occasionally  arisen  as  to  whether  the  award  of  an 
international  commission  is  final  as  between  the  prosecuting  govern- 
ment and  the  successful  claimant  in  whose  behalf  the  claim  was  pre- 
sented. The  control  of  the  government  over  an  award  in  all  matters 
affecting  its  integrity,  is  well  established.  The  fact  that  municipal 
courts  have  sustained  the  right  of  the  government  to  set  aside  the  award 
for  fraud  or  other  good  reason,  leaving  the  claimant  without  judicial 
remedy  against  the  act  of  the  government,  proves  clearly  that  as  be- 
tween the  citizen  and  his  own  government  the  award  of  an  international 
commission  is  not  final. ^  Nor,  as  will  be  noted  presently,  has  the 
individual  any  title,  legal  or  equitable,  in  an  award  or  diplomatic 
settlement  made  in  his  behalf.  On  the  other  hand,  as  between  the 
two  governments,  the  decision  of  an  arbitral  tribunal  in  the  case  of  a 
single  or  a  collective  award  is  final  as  to  the  validity  and  amount  of 
the  claim,  although  the  two  governments  may,  by  agreement,  set 
the  award  aside  without  consulting  the  individual  claimant.^  It  has 
even  been  held  that  the  decisions  of  domestic  commissions  created 
by  Congress  to  distribute  a  collective  award  to  the  entitled  claimants, 
are  final  and  conclusive  as  to  the  vaUdity  and  amount  of  the  claims, 
but  not  as  to  the  ownership  of  the  amounts  as  between  conflicting 
claimants,  who  are  left  to  resort  to  the  ordinary  courts."* 

'  Opinion  of  J.  Reuben  Clark,  Jr.,  Solicitor,  In  re  Distribution  of  AIsop  award, 
p.  15. 

2  U.  S.  V.  La  Abra  Silver  Mining  Co.,  29  Ct.  CI.  432;  Boynton  v.  Blaine,  139  U.  S. 
306;  La  Abra  Silver  Min.  Co.  v.  U.  S.,  175  U.  S.  423.  See,  however,  the  opinion  of 
Hoar,  Atty.  Gen.,  in  Gibbes'  case  (13  Op.  19)  in  which  he  considered  that  an  award 
gave  the  claimant  a  right  which  could  not  be  divested  by  the  government  by  resub- 
mitting the  claim  to  a  new  commission.  This  opinion  is  contrary  to  the  general  rule, 
and  is  not  considered  good  law. 

'  Frehnghuysen  i;.  Key,  110  U.  S.  63;  La  Ninfa,  75  Fed.  513,  Moore's  Dig.  VII, 
§  1081.  Certain  awards  of  the  1857  U.  S.-Colombian  commission  were  set  aside  and 
resubmitted  to  the  1864  commission.  The  Orinoco  Steamship  Co.  award  of  Umpire 
Barge  was  opened  and  the  case  resubmitted  to  the  Hague  Court,  1909-1910.  Contra 
to  the  rule  of  the  text,  Atty.  Gen.  Hoar's  dictum  in  13  Op.  19. 

*Coraegy8  «;.  Vasse,  1  Pet.  193,  212;  Frevall  t;.  Bache,  14  Pet.  95;  Phelps  v.  Mo- 


AWARD    OR   INDEMNITY   A    NATIONAL   FUND  383 

In  the  Caldera  cases,  it  was  held  by  the  Court  of  Claims  and  affirmed 
by  the  Supreme  Court/  that  this  government  having  diplomatically 
asserted  a  claim  against  China  to  be  valid,  a  domestic  commission 
or  court  authorized  to  pass  upon  the  claim  is  constrained  to  regard 
it,  as  between  this  government  and  the  claimants,  as  a  legitimate  inter- 
national claim.  This  decision  constituted  the  basis  for  the  contention 
of  several  claimants  before  the  Spanish  Treaty  Claims  Commission 
to  the  effect  that  the  government,  having  supported  a  claim  for  a 
certain  indemnity  against  Spain,  the  Commission  was  bound  to  con- 
sider the  claim  as  valid  and  to  hold  the  United  States  under  an  obliga- 
tion to  pay  the  indemnity  claimed  out  of  the  sum  set  aside  by  the 
treaty  for  the  payment  of  claims.^  This  argument  appears  to  have 
been  rejected  by  the  Commission.^ 

§  162.  Award  or  Indemnity  a  National  Fund,  Free  from  Individual 
Lien. 
It  has  already  been  observed  that  in  the  prosecution  of  an  interna- 
tional reclamation  the  government  has  complete  control  of  the  claim 
and  may  settle  it  in  such  manner  as  in  its  opinion  may  best  subserve 
the  public  interests.  Not  being  the  representative  or  agent  of  the  in- 
dividual injured,  it  need  not  necessarily,  although  it  does  usually, 
demand  a  pecuniary  indemnity.  To  this  indemnity,  when  collected, 
the  individual  has  no  legal  right,  because  international  responsibility 
is  a  relation  between  states  only.  The  indirect  effect  of  such  responsi- 
bility is  usually,  however,  the  indemnification  of  the  injured  individ- 
ual, not  in  virtue  of  any  enforceable  right  or  lien  upon  the  fund,  but 
because,  first,  the  receiving  state  may  be  bound  by  agreement  toward 

Donald,  99  U.  S.  298;  Williams  v.  Heard,  140  U.  S.  529.  See  also  as  to  finality  of 
decisions  of  domestic  commissions,  Meade  v.  U.  S.,  9  Wall.  691;  In  re  Atocha,  17 
Wall.  439.  The  Department  of  State,  however,  altered  many  awards  of  the  Board 
passing  on  Boxer  claims  against  China,  particularly  in  death  claims.  The  Depart- 
ment probably  has  the  same  right  to  open  the  awards  of  the  Board  passing  on  the 
1911  Revolutionary  Claims  against  China.  These  boards  were  appointed  or  their 
.\merican  members  named  by  the  Department  and  not  by  Congress. 

'  15  Ct.  CI.  546;  16  Ct.  CI.  635. 

*  Argument  of  John  G.  Carlisle  in  the  Rosario  Sugar  Co.  case,  No.  341. 

^  Opinions  of  the  Commissioners  filed  Dec.  5,  1903,  p.  85.  See  also  the  dissenting 
opinion  of  Davis,  J.,  in  Hubbell  v.  U.  S.,  15  Ct.  CI.  546,  600. 


384  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

the  state  making  reparation  to  devote  the  sum  to  the  indemnification 
of  its  injured  citizen,^  or  else,  secondly,  because  the  receiving  state 
may  carry  out  its  moral  obligation  to  bestow  the  fund  upon  the  citizen 
whose  injury  initiated  the  international  claim.  Technically,  of  course, 
all  claims  urged  by  one  state  upon  another  are  national.  It  is  obvious, 
however,  that  there  is  a  distinction  between  claims  founded  upon  an 
injury  to  the  people  or  the  country  as  a  whole  and  those  founded  upon 
injury  to  particular  citizens.^  It  is  this  distinction  which  creates  the 
moral  obligation  in  the  second  case. 

§  153.  Nature  of  Individual  Claimant's  Title  to  Fund. 

As  a  matter  of  law,  the  indemnity  which  passes  between  governments 
in  liquidation  of  claims  arising  out  of  injuries  inflicted  upon  individuals 
is  a  national  fund  free  from  any  lien  or  trust  in  favor  of  any  particular 
individual.^  The  government  may,  as  has  been  seen,  waive  the  pay- 
ment of  an  unconscionable  award,  withhold  an  indemnity  pending  an 
investigation  into  the  bona  fides  of  the  claim  or  claimant,  and  if  con- 
vinced of  the  defective  right  of  either,  return  to  the  foreign  nation  an 
indemnity  already  paid.*     This  control  over  the  fund  by  the  execu- 

>  If  bound  by  a  treaty  to  distribute  an  award,  the  government  may  be  considered 
legally  bound,  inasmuch  as,  under  our  system,  a  treaty  is  the  law  of  the  land.  In 
this  connection,  the  government's  control  over  the  distribution  of  an  award  is  illus- 
trated by  the  treaty  of  Nov.  25,  1899  between  Italy  and  Peru  for  the  settlement  of 
Italian  claims  arising  out  of  the  Civil  War  of  1894-1895,  in  which  Italy  reserves 
the  right  (art.  8)  of  giving  preference  in  the  distribution  of  awards  to  those  of  its 
claimants  who  are  most  needy.  Descamps  and  Renault,  Rec.  int.  des  traites  du  xx 
siecle,  I,  709. 

2  See  Gray  v.  U.  S.,  Act  of  Jan.  20,  1885,  21  Ct.  CI.  340. 

»  Williams  v.  Heard,  140  U.  S.  529;  U.  S.  v.  Weld,  127  U.  S.  51;  Great  Western  Ins. 
Co.  V.  U.  S.,  19  Ct.  CI.  206,  217;  Rustomjee  v.  The  Queen,  1  Q.  B.  D.  489;  2  ibid.  69; 
Mr.  Olney,  Sec'y  of  State,  to  the  Attorney  General,  Oct.  2,  1895,  Moore's  Dig.  VI, 
10.34.  But  see  dida  in  Comegys  v.  Vasse,  1  Peters,  193  and  the  Act  of  Parliament, 
Aug.  2,  1875  {In  re  distribution  of  awards  of  British-American  commission  of  1871, 
which  provided  that  the  sums  be  turned  over  to  the  High  Court  of  Chancery  as 
trustees  for  the  persons  entitled  thereto.  66  St.  Pap.  240).  The  Act  of  Feb.  27,  1896 
(29  Stat.  L.  32)  states,  however,  that  "all  moneys  received  by  the  Secretary  of  State 
from  foreign  governments  and  other  sources,  in  trust  for  citizens  of  the  United  States 
or  others,  shall  be  deposited  and  covered  into  the  Treasury."  This  Act  is  discussed 
infra,  §  155. 

*  Supra,  p.  374.    The  government,  on  receipt  of  lump  sums  in  settlement  of  claims, 


DISTRIBUTION   A    MATTER   OF    EXECUTIVE   DISCRETION  385 

tive  or  by  the  legislative  branch  of  the  government  is  free  from  inter- 
ference by  the  courts,  either  by  mandamus/  upon  the  petition  of  in- 
terested claimants,  or  otherwise.  Although  the  individual  claimant, 
therefore, — whether  in  case  of  a  single  claim,  or  a  group  of  claims 
for  which  a  lump  sum  is  received — has  no  strict  legal  or  equitable 
right  to  the  indemnity,  its  distribution  by  the  government  is  not  a 
gift  -  to  the  individual  claimant,  who  may  be  said  to  have  at  least 
''an  expectancy  of  interest  in  the  fund"  ^  and  a  moral  right  to  receive 
the  benefits  of  an  indenmity  collected  in  his  behalf.  He  has  a  right  of 
property  m  the  claim  and  the  corresponding  indemnity,  notwithstand- 
ing the  fact  that  it  may  be  unenforceable  in  law  until  the  government 
makes  it  so.^ 

§  154.  Its  Distribution  a  Matter  of  Executive  or  Congressional  Dis- 
cretion, Free  from  Judicial  Control. 
The  indemnity  fund  having  been  received  by  the  government  may 
be  apportioned  and  distributed  among  the  various  claimants  as  the 
Executive  or  Congress  deems  proper.  The  distribution  is  usually 
made  by  the  Secretary  of  State  without  any  special  legislative  author- 
ity, under  the  general  powers  possessed  by  him  through  the  President 

may  return  sums  in  excess  of  losses  actually  sustained,  e.  g.,  The  Chinese  Indemnity 
of  1858  and  1901  and  the  Japanese  Indemnity  of  1864,  supra,  p.  375. 

1  Frelinghuysen  ;>.  Key,  110  U.  S.  63;  Boynton  v.  Blaine,  139  U.  S.  306,  323;  La 
Abra  SUver  Mining  Co.  v.  U.  S.,  175  U.  S.  423. 

2  Several  state  courts  erroneously  so  held  in  the  case  of  the  distribution  of  the 
Alabama  award  (see  the  summary  of  the  decisions  of  these  courts  in  5  Harvard  Law 
Rev.,  1891,  204-205).  The  Supreme  Court  in  Williams  v.  Heard,  140  U.  S.  529, 
reversed  these  decisions.  See  also  Comegys  v.  Vasse,  1  Peters,  193  and  Phelps  v. 
McDonald,  99  U.  S.  297.  But  in  Blagge  i>.  Balch,  162  U.  S.  439,  the  Supreme  Court 
distinguished  Williams  v.  Heard  and  Comegys  v.  Vasse  and  held  that  the  Act  of  Con- 
gress making  appropriations  for  the  pajmient  of  French  Spoliation  Claims  (released 
to  France  for  a  consideration,  compensation  therefor  being  gi-anted  by  Congress) 
was  to  be  regarded  as  a  gratuity  to  claimants,  and  not  a  matter  of  right.  See  also 
Emerson  v.  Hall,  13  Pet.  409.  Probably  the  clearest  statement  of  the  claimant's 
relationship  to  the  international  award  and  to  the  fund  received  in  payment  thereof 
is  set  forth  in  Williams  v.  Heard,  140  U.  S.  529. 

'  WilUams  v.  Heard,  140  U.  S.  529. 

*  Comegys  i'.  \^asse,  1  Pet.  193.  To  effect  that  claimant's  interest  may  be  bought 
and  sold,  assigned,  devised  and  pass  to  legal  representatives,  see  also  Williams  v. 
Heard,  140  U.  S.  529  and  Porter  v.  White,  127  U.  S.  235;  to  effect  that  it  constitutes 
a  chose  in  action,  Judson  v.  Corcoran,  17  How.  612. 


386  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

to  conduct  the  foreign  relations  of  the  government.^  This  is  usually 
the  practice  when  a  single  claim  is  paid,  and  in  principle  is  not  altered 
by  the  fact  that  a  group  of  claims  is  paid  in  a  lump  sum.  In  the  latter 
case,  it  is  usually  deemed  more  convenient  to  create  some  kind  of 
judicial  commission  to  apportion  the  fund  received. 

Both  the  Executive  and  Congress  have  certain  plenary  powers  over 
the  fund  received  and  an  absolute  discretion  in  its  distribution.  For 
example,  as  already  observed,  the  Executive  may  either  decline  to 
enforce  payment  of  an  award  considered  erroneous,  as  was  done  by 
Secretary  Bayard  in  the  cases  of  Pelletier  and  Lazare  against  Haiti, 
or  he  may  withhold  payment  to  claimants,  uncontrolled  by  the  courts, 
ponding  diplomatic  negotiations  for  the  opening  of  an  award.  In  the 
conclusion  of  new  treaties  for  the  resubmission  of  claims  to  arbitration 
the  power  of  the  Senate  may  also  be  involved.  In  the  refunding  of 
an  award  obtained  by  fraud  or  imposition,  and  the  investigation  of  the 
matter  of  fraud.  Congressional  legislation  has  usually  been  invoked, 
principally  because  the  Executive  or  political  branch  of  the  govern- 
ment has  no  machinery  for  the  examination  of  essentially  judicial 
questions,  the  method  for  their  examination  being  left  to  the  direction 
of  Congress.  Congress  has  on  several  occasions  delegated  this  judicial 
function  to  the  Court  of  Claims,  and  the  constitutionality  of  its  action 
has  been  upheld  by  the  courts.^  As  a  matter  of  fact,  after  the  inter- 
national questions  have  been  settled.  Congress  has  plenary  jurisdic- 
tion over  the  distribution  of  the  national  fund,  provided  it  chooses 
to  act.^ 

In  the  exercise  of  its  full  control  over  the  matter  of  distribution, 
Congress  has  directed  payment  to  certain  claimants  and  excluded 
others;  e.  g.,  in  the  payment  of  French  Spoliation  claims,  Congress 

*  The  decisions  of  the  French  Council  of  State  exclude  judicial  review  of  the  ex- 
ecutive act  of  distributing  awards,  on  the  ground  that  it  is  a  diplomatic  act,  or  "  acte 
de  gouvernement"  (Courson,  Jan.  5,  1847,  Lebon,  1;  Dubois,  Apr.  30,  1867,  Lebon, 
421)  although  adverse  claimants  may  sue  the  beneficiaries  of  the  distribution  in  the 
courts  (Pontus,  May  25,  1832,  Lebon,  160).  This  closely  resembles  the  American 
practice. 

^E.  g.,  U.  S.  V.  La  Abra  Silver  Min.  Co.,  175  U.  S.  423  (29  Ct.  CI.  432);  U.  S.  v. 
Weil,  35  Ct.  CI.  42;  U.  S.  v.  Diekelman,  92  U.  S.  520  (8  Ct.  CI.  371). 

'  Opinion  of  Solicitor,  Distribution  of  Alsop  award.,  pp.  17-27.  In  most  cases, 
the  distribution  is  left  to  the  Department  of  State  exclusively. 


I 


DISTRIBUTION   A    MATTER   OF    EXECUTIVE    DISCRETION  387 

provided  that  only  the  next  of  kin  of  the  "original  sufferer"  should 
benefit,  to  the  exclusion  of  assignees  in  bankruptcy  and  insurance  com- 
panies,^ and  in  the  distribution  of  the  Alabama  award  under  the  Act 
of  June  23,  1874,  after  providing  that  the  Commission  might  award 
attorney's  fees  to  those  appearing  for  claimants,  declared  null  and 
void  all  other  liens  or  assignments  and  transfers  for  services  rendered 
made  before  the  judgment  of  the  conmiissioners  was  handed  down.^ 
Congress  may  designate  any  court  to  hear  claims  against  awards  re- 
ceived from  foreign  powers,  and  for  this  purpose  has  often  designated 
the  Court  of  Claims  or  special  tribunals,  whose  decisions,  unless  re- 
opened by  Congress  and  appeal  allowed,^  are  final  on  the  question  of 
vahdity  and  amount  of  the  claim. 

Unless  specially  designated  by  Congress  for  the  purpose,  the  Court 
of  Claims  has  denied  its  jurisdiction  over  claims  against  the  United 
States  arising  out  of  an  award  paid  to  the  United  States  under  treaty 
or  agreement  with  a  foreign  power,  either  because  it  was  considered  a 
claim  growing  out  of  a  treaty  under  §  1066  of  the  Revised  Statutes 
or  because  the  obligation  of  the  government  to  pay  a  claimant  cannot 
be  deemed  a  contract,  express  or  implied.^ 

In  most  cases,  particularly  where  single  claims  are  collected,  Congress 
has  not  interfered  with  the  free  exercise  of  the  Executive's  discretion 
in  the  distribution  of  awards.^ 

Prior  to  the  Act  of  February  27,  1896,  which  will  be  considered 
presently,  it  was  the  practice  of  the  Executive,  through  the  Secretary 
of  State,  to  pay  over  to  the  injured  party  or  parties  the  indemnity 
collected,  without  any  act  of  Congress.     Only  in  exceptional  cases, 

'  26  Stat.  L.  897,  908.  As  to  the  plenary  power  of  Congress  over  awards  see 
Blagge  V.  Balch,  162  U.  S.  439. 

2  See  full  text  of  §  18  of  Act  of  June  23,  1874,  18  Stat.  L.  249.  Bachman  v.  Lawson, 
109  U.  S.  659. 

'  S.  J.  Res.,  May  25,  1908,  allowing  appeal  to  Court  of  Claims  from  decisions  of 
U.  S.  commissioners  in  the  Boxer  Indemnity  claims.  35  Stat.  L.  577,  For.  Rel., 
1908,  65. 

*  Great  Western  Ins.  Co.  v.  U.  S.,  19  Ct.  CI.  206  (112  U.  S.  193);  AUing  v.  U.  S., 
114  U.  S.  562  (17  Ct.  CI.  311). 

*  Committees  of  Congress  have  expressly  conceded  that  the  Department  of  State 
had  full  power  and  authority  in  the  distribution  of  awards.  Sen.  Rep.  311,  47th 
Cong.,  1st  Bess.,  March  23,  1882;  H.  Rep.  700,  45th  Cong.,  2nd  sess.,  April  24,  1878, 
p.  2. 


388  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

did  Congress  interfere  with  the  Secretary's  discretion  in  the  disposi* 
tion  of  funds  received.^  When  there  was  a  single  claimant,  or  where 
a  domestic  commission  had  apportioned  the  individual  claims  against 
a  lump  sum  indemnity,  the  Secretary  of  State  paid  the  person  who 
appeared  to  be  'prima  jade  entitled,  namely,  either  the  claimant  or 
his  assignee  of  record.  Should  the  fund  have  been  paid  to  one  not 
equitably  entitled,  no  liability  was  incurred  by  the  Secretary,  but  the 
courts,  in  actions  for  money  had  and  received  or  by  way  of  injunction, 
granted  appropriate  relief  to  the  persons  rightfully  entitled,  either  by 
allowing  recovery  of  moneys  paid  to  claimants  not  entitled,  or  by 
perpetually  enjoining  the  receipt  of  the  moneys  by  one  who  may  be 
pnma  facie  but  not  equitably  entitled.^ 

It  has  already  been  observed  that  the  courts  have  no  jurisdiction 
over  the  Secretary  of  State  either  to  compel  or  enjoin  the  distribution 
of  funds.  It  is  established  law  that  the  government  cannot  be  sued 
in  the  ordinary  courts  without  its  consent,  nor  is  the  Secretary  of  State 
subject  to  any  judicial  decree  tying  up  the  fund  or  directing  his  action 
in  the  discharge  of  such  an  important  executive  function  as  the  dis- 
tribution of  awards,  over  which,  by  its  nature,  the  Executive — subject 
to  direction  by  Congress,  if  Congress  desires  to  act  in  the  matter — 
has  unquestionable  control.^  The  Secretary's  control  over  the  funds 
cannot  be  intrenched  upon,  directly  or  indirectly,  by  way  of  manda- 
mus, injunction  or  suit,  to  recover  the  funds  or  to  fetter  his  discretion 
by  the  declaration  of  a  lien  or  trust. ^ 

§  155.  Practice  of  Department  of  State  under  Act  of  February  27, 1896. 

Prior  to  the  statute  of  1896  there  was  no  customary  place  for  the 

*  Act  of  June  18,  1878,  20  Stat.  L.  144,  conferring  on  Secretary  exclusive  jurisdic- 
tion over  the  distribution  of  the  awards  of  the  U.  S.-Mexican  commission  of  1868. 
Virginius  indemnity,  Joint  Res.  of  Dec.  16,  1882,  directing  Secretary  to  pay  a  portion 
of  the  fund  received  from  Spain  to  a  person  not  included  in  the  original  plan  of  dis- 
tribution. See  H.  Ex.  Doc.  15,  45th  Cong.,  Ist  sess.,  H.  Ex.  Doc.  72,  45th  Cong., 
2nd  sess. 

^  Brief  of  Solicitor  Penfield  in  Pell  v.  Hay,  Supreme  Court  of  the  District  of  Co- 
lumbia, 1002. 

'  Stublxs'  case,  10  Op.  Atty.  Gen.  31,  32. 

*  Brief  of  Solicitor  Penfield  in  Pell  v.  Hay,  citing  10  Op.  Atty.  Gen.  31,  FreUnghuy- 
sen  V.  Key,  110  U.  S.  63,  Boynton  v.  Blaine,  139  U.  S.  306,  and  Rustomjee  v.  The 
Queen,  2  Q.  B.  D.  09. 


PRACTICE    UNDER   ACT   OF    FEBRUARY    27,    189G  389 

deposit  of  funds  received  from  foreign  governments  in  pajTnent  of 
claims.  These  moneys,  which  for  various  reasons  were  withheld  from 
immediate  distribution,  were  occasionally  deposited  by  the  Secretary 
of  State  in  private  banks,  where  the  money  earned  interest.  Disputes 
sometimes  arose  as  to  the  ownership  of  the  increment,  it  being  finally 
settled  that  as  between  the  government  and  the  claimant,  the  govern- 
ment and  not  the  claimant  had  title  to  and  the  benefit  of  any  accretions 
to  the  fund.^  In  the  case  of  the  indemnity  received  from  Venezuela 
under  the  subsequently  reopened  awards  of  the  1866  commission, 
Congress  provided  that  the  increment  or  accretions  of  the  funds  in- 
vested in  banks  should  be  credited  to  Venezuela  and  applied  to  the 
payment  of  the  awards  of  the  1885  commission. - 

The  diversity  and  uncertainty  in  practice  and  the  absence  of  Con- 
gressional authority  for  the  deposit  of  funds  received  by  the  Secretary 
of  State  in  payment  of  claims  constituted  the  reason  for  the  enact- 
ment by  Congress,  upon  request  of  Secretary  Olney,  of  the  Act  of 
February  27,  1896,^  providing  for  the  deposit  of  funds  in  the  Treasury, 
and  for  the  procedure  for  their  disbursement.^  In  other  respects, 
the  Executive  prerogative  in  the  disposition  of  indemnities  has  not 
been  affected.  By  the  Act,  Congress  has  exercised  its  jurisdiction, 
under  municipal  law,  to  provide  for  the  disbursement  of  national  funds. 
The  Act  reads  as  follows : 

"Hereafter  all  moneys  received  by  the  Secretary  of  State  from  foreign 
governments  and  other  sources,  in  trust  for  citizens  of  the  United  States 
or  others,  shall  be  deposited  and  covered  into  the  Treasury. 

"The  Secretary  of  State  shall  determine  the  amounts  due  claimants, 
respectively,  from  each  of  such  trust  funds,  and  certify  the  same  to  the 
Secretary  of  the  Treasur}--,  who  shall,  upon  the  presentation  of  the  cer- 
tificates of  the  Secretary  of  State,  pay  the  amounts  so  found  to  be  due. 

1  Angarica  v.  Bayard,  127  U.  S.  251. 

2  Act  of  Jan.  21,  1895,  28  Stat.  L.  635.  In  the  Senate  Report  on  this  bill,  it  is  de- 
clared that  the  investment  of  indemnities  is  unauthorized  by  law.  Sen.  Rep.  691, 
52ud  Cong.,  1st  sess.,  reprinted  in  Sen.  Doc.  231,  pt.  3,  56th  Cong.,  2nd  sess.,  compila- 
tion of  reports  of  Committees  on  For.  Rel. 

'  29  Stat.  L.  32.  See  explanatory  statement  of  Representative  Hitt  in  the  Con- 
gressional Record,  54th  Cong.,  1st  sess.,  v.  28,  pt.  2,  p.  1058,  reprinted  in  Sol.  Op.  Fn 
re  Distribution  of  Alsop  award,  p.  45. 

*  Some  account  of  the  earlier  practice  in  the  disbursement  of  funds  received  in 
payment  of  international  claims  is  found  in  Moore's  Dig.  VI,  1030-1031. 


390  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

"Each  of  the  trust  funds  covered  into  the  Treasury  as  aforesaid  is 
hereby  appropriated  for  the  payment  to  the  ascertained  beneficiaries 
thereof  of  the  certificates  herein  provided  for." 

There  are  no  reported  cases  under  this  statute,  although  suits  have 
been  brought  under  it  involving  the  right  of  individuals  to  compel 
the  action  of  the  Secretary  of  State  or  the  Secretary  of  the  Treasury 
by  mandamus  or  injunction;  but  in  line  with  previous  decisions  of 
the  Supreme  Court,  the  Secretary  of  State's  discretion  had  been  held 
to  be  uncontrollable  by  either  of  these  writs.  Indeed,  the  only  essential 
innovation  inaugurated  by  the  statute  is  to  make  a  permanent  appro- 
priation of  such  funds  deposited  in  the  Treasury,  as  are  ordered  paid 
by  the  certificates  of  the  Secretary  of  State.  Moreover,  the  statute 
is  merely  declaratory  in  leaving  the  absolute  and  exclusive  determina- 
tion of  the  disposition  of  the  funds  to  the  discretion  of  the  Secretary 
of  State.  Had  the  courts  the  power  to  restrain  the  Secretary  of  State, 
or  the  Secretary  of  the  Treasury  in  the  disbursement  of  moneys  on  the 
certificate  of  the  Secretary  of  State,  it  would  very  substantially  impair 
the  Secretary  of  State's  jurisdiction,  having  the  effect  of  making  the 
Secretary's  determination  merely  a  preliminary  formality  and  placing 
the  real  power  to  determine  the  beneficiaries  in  the  courts. 

The  statute  of  1896  contemplates  four  operations  by  the  Secretary 
of  State  in  his  control  of  indemnities:  (1)  the  receipt  of  the  money 
from  the  foreign  government;  (2)  covering  the  money  into  the  Treas- 
ury; (3)  the  determination  of  the  amounts  due  claimants  respectively 
from  such  funds;  and  (4)  the  certification  of  the  same  to  the  Secretary 
of  the  Treasury  by  the  issuance  of  certificates.^ 

The  first  and  second  steps  require  no  explanation,  so  that  attention 
may  at  once  be  given  to  the  third  and  fourth.  The  third  operation 
imposes  upon  the  Secretary  of  State  ^  primarily  and  essentially  a  ju- 
dicial function  in  the  exercise  of  the  municipal  jurisdiction  which  at- 
taches to  the  fund  when  received,  rather  than  an  executive  function 
in  the  conduct  of  foreign  relations.  These  judicial  duties  involve 
two  processes:  (a)  the  determination  of  who  the  claimants  are,  i.  e., 

'  An  excellent  analysis  of  the  Act  of  1896  and  the  powers  of  the  Secretary  there- 
under is  to  be  found  in  the  opinion  of  J.  Reuben  Clark,  Solicitor,  In  re  Distribution 
of  Alsop  award  (1912),  pp.  36-45. 

*  The  Secretary  usually  delegates  these  duties  to  the  office  of  the  Solicitor. 


WHO   ARE    "claimants"    ENTITLED    TO    DISTRIBUTION   OF   FUNDS      391 

the  beneficiaries  entitled  to  indemnities,  and  (b)  the  determination  of 
the  amounts  due  them. 

§  156.  Who  are  "  Claimants  "  Entitled  to  Distribution  of  Funds. 

Prior  to  1896,  it  was  the  practice  of  the  Secretary  of  State  in  dis- 
tributing awards  to  pay  the  funds  received  by  way  of  indemnity  to 
those  who  had  sustained  the  injury  at  the  hands  of  the  foreign  govern- 
ment, or  to  those  who  held  uncontested  assignments  or  orders  to  pay, 
of  record  in  the  Department.  Payment  to  assignees  and  vendees  was 
made  as  a  matter  of  convenience  and  favor  to  the  parties.  Contesting 
parties  to  a  fund  were  referred  to  the  courts,  the  Secretary's  discretion 
enabling  him  in  the  meantime  to  pay  those  whom  he  regarded  as  pri- 
marily the  claimants,  or  to  withhold  the  money  pending  adjudication 
by  the  courts,  the  decisions  of  which  he  always  respected.^ 

The  statute  of  1896  has  not  altered  the  Secretary's  power  or  enlarged 
his  jurisdiction.  In  the  authority  conferred  upon  him  to  "determine 
the  amounts  due  claimants,"  the  term  "claimants"  is  construed,  in 
accordance  with  the  practice  of  the  Department  and  of  the  courts,^ 
to  embrace  those  who  sustained  the  injury  and  in  whose  behalf  the 
claim  is  prosecuted,  i.  e.,  those  having  the  initial  or  primary  rights, 
and  not  to  extend  to  those  who  have  secondary  or  derivative  rights, 
arising  by  inheritance,  assignment,  or  purchase  from  original  claimants. 
The  Secretary,  therefore,  being  constituted  a  special  tribunal  for  the 
determination  of  the  persons  who  are  claimants,  need  not  concern 
himself,  unless  specially  directed  by  Congress,  with  the  adjudication 
of  those  manifold  derivative  or  subsidiary  rights  arising  out  of  the 
relation  of  creditor,  stockholder,  lienholder,  attorney,  agent,  assignee 
in  bankruptcy,  receiver,  and  similar  relationships.     These  secondary 

^  The  Secretary's  power  and  right  to  withhold  payment  pending  the  result  of  hti- 
gation  between  conflicting  claimants  was  sustained  in  Bayard  v.  White,  127  U.  S.  246. 
The  Executive's  inability  properly  to  adjudicate  a  conflicting  claim,  and  his  power 
to  conserve  the  rights  of  all  parties  pending  a  settlement  of  their  differences  is  recog- 
nized in  Redfield  v.  Windom,  137  U.  S.  637.  See  also  In  re  Idler  certificates,  Opin.  of 
Sohcitor  Partridge,  21  Sol.  Op.  404,  cited  by  Solicitor  Clark. 

2  FreUnghuysen  v.  Key,  110  U.  S.  63;  AlMng  v.  U.  S.,  114  U.  S.  563;  La  Abra  Silver 
Min.  Co.  V.  U.  S.,  175  U.  S.  423.  By  international  commissions  the  term  has  been 
sometimes  loosely  used  to  cover  the  assignee,  representative,  agent  or  attorney  ac- 
tually prosecuting  the  claim. 


392  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

claimants,  who  allege  legal  or  equitable  ownership  in  the  fund,  are  prop- 
erly referred  to  the  courts,  partly  because  the  Secretary's  jurisdiction  is 
special  and  should  be  strictly  construed,  and  partly  because  the  De- 
partment of  State  lacks  the  legal  machinery  properly  to  conduct  a 
judicial  inquiry.^ 

§  157.  Conflicting  Claims  of  Secondary  Beneficiaries  Usually  Referred 
to  Courts. 

It  is  the  established  usage  of  the  Department,  therefore,  to  pay 
awards  to  the  original  claimant,  as  the  entitled  beneficiary  of  an  in- 
demnity, or,  as  a  matter  of  convenience  to  the  parties,  to  the  uncon- 
tested assignee  of  record  or  proved  heir  or  legatee.  When,  however, 
the  Department  has  been  notified  of  conflicting  claims  against  the 
fund  in  its  hands,  even  if  not  represented  by  assignments  of  record, 
the  Department  may  and  does  frequently  withhold  payment  for  a 
reasonable  time  in  order  to  allow  the  parties  to  settle  their  differences, 
amicably  or  in  the  courts." 

The  Department  primarily  recognizes  only  original  beneficiaries  of 
an  indemnity  and  those  who  hold  uncontested  assignments  or  orders 
to  pay.  Creditors  of  the  beneficiaries,  by  judgment  or  otherwise, — 
unless  assignees  of  record — are  remitted  to  their  legal  or  equitable 
remedies  in  the  courts,  the  Department  respecting  any  final  judgments 
they  may  obtain.^    In  cases  where  corporations  are  beneficiaries,  both 

>  Solicitor's  opinion  In  re  distribution  of  Alsop  award,  p.  40,  citing  Mr.  Evarfcs, 
Sec'y  of  State,  to  the  President,  Aug.  13,  1879,  Ex.  Doc.  103,  48th  Cong.,  1st  sess., 
582,  and  La  Abra  Silver  Min.  Co.  v.  U.  S.,  175  U.  S.  423.  For  a  summary  of  cases 
involving  htigations  between  persons  holding  derivative  interests  in  a  fund,  see 
Solicitor's  Opin.  Jn  re  Alsop  award,  28-30. 

2  See  Bayard  v.  White,  127  U.  S.  246. 

'  The  Department  does  not  recognize  creditors'  attachments  upon  awards,  issued 
out  of  foreign  courts,  as  liens,  but  leaves  creditors  to  their  ordinary  recourse  against 
their  debtors  in  the  courts.  A  foreign  judgment  transformed  by  suit  into  a  domestic 
judgment  would  be  recognized.  An  attachment  cannot  issue  in  courts  of  the  U.  S. 
against  funds  in  the  hands  of  the  Secretary  of  State.  In  Italy,  creditors'  attachments 
against  funds  collected  by  the  Minister  of  Foreign  Affairs  on  behalf  of  private  claim- 
ants seem  to  be  issued  by  the  courts.  See  Cerruti  (Italy)  v.  Colombia,  award  of 
July  0,  1911,  6  A.  J.  I.  L.  (1912),  1023,  1027.  Anzilotti  states  that  a  creditor  can 
bring  no  judicial  action  against  an  undistributed  award  in  the  hands  of  the  govern- 
ment, 13  R.  G.  D.  I.  P.  (1900),  309. 


METHOD    OF    PROVING    TITLE   AS    CLAIMANT   OR   BENEFICIARY       393 

stockholders  and  creditors  are  so  remitted,  the  Department  deahng 
only  with  the  duly  qualified  representative  of  the  corporation. 

The  Department  has  often  had  occasion  to  pass  upon  the  validity 
of  agreements  between  claimant  and  counsel  with  a  view  to  estab- 
lishing a  lien  upon  the  fund  received  in  payment  of  a  claim.  Valid 
contracts  for  attorney's  services  in  the  prosecution  of  a  claim  having 
been  construed  by  the  courts  as  creating  a  lien  upon  the  fund  recovered,^ 
the  Department  has  considered  such  contracts  in  the  character  ot 
assignments  of  interest,  and  even  when  \\'ithout  agreement  valuable 
services  in  the  collection  of  claims  were  rendered  by  attorneys,  the 
Department  has  protected  the  equitable  interests  of  such  counsel  by 
the  allowance  of  a  reasonable  fee.-  In  the  act  creating  the  Court  of 
Commissioners  of  Alabama  Claims,  Congress  provided  for  reasonable 
compensation  to  attorneys  or  counsel,  to  be  allowed  as  part  of  the 
judgment.^ 

The  government  usually  considers  as  a  lien  upon  awards,  the  ex- 
penses it  may  have  incurred  in  the  prosecution  of  a  claim. ^  These 
expenses  are  deducted  before  distribution  of  the  award  to  claimants. 
Debts  due  to  the  United  States  by  the  claimant  are  always  first  liens, 
and  may  be  deducted  immediately.'' 

§  158.  Method  of  Proving  Title  as  Claimant  or  Beneficiary. 

No  formal  procedure  is  required  for  establishing  before  the  Depart- 
ment a  person's  right  as  a  beneficiary  of  a  fund.  Such  person  is  simply 
required  to  furnish  the  Department  with  a  statement  adequately 
setting  forth  his  interest,  accompanied  by  such  documentary  or  other 
proof  as  may  be  necessary,  e.  g.,  proof  of  identity,  a  duly  executed 
assignment,  an  exemplified  copy  of  a  will  and  record  of  probate  pro- 
ceedings, or  letters  of  administration.     Before  making  payments  to 

1  Wylie  V.  Coxe,  15  How.  415;  Bachman  v.  Lawson,  109  U.  S.  659. 

2  Twenty  per  cent  of  the  award  was  considered  as  a  reasonable  fee  in  the  case  of 
the  ten  seamen  of  the  schooner  C.  H.  While,  in  whose  behalf  an  award  of  $3,000  was 
received  from  Russia. 

3  Act  of  June  23,  1874,  §  18,  18  Stat.  L.  249;  Bachman  v.  Lawson,  109  U.  S.  659. 
*  Infra,  §  161. 

6  See  AUing  v.  U.  S.,  17  Ct.  CI.  311,  reversed  in  114  U.  S.  562  on  jurisdictional 
grounds. 


394  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

an  administrator,  the  Department  requires  evidence  that  he  has  filed 
adequate  bonds  as  administrator  with  the  appropriate  court,  and  in 
addition  a  bond  covering  the  amount  of  the  payment  to  be  made  by 
the  Department,  the  bond  sometimes  having  to  be  approved  under 
the  seal  of  the  court.  This  additional  bond  must  also  be  filed  by  the 
assignee  of  an  administrator.  It  appears  that  in  a  few  cases  a  bond 
in  double  the  amount  of  the  payment  to  be  made,  running  to  the  De- 
partment or  to  the  Government,  has  been  required  as  a  condition  of 
payment,  the  purpose  of  the  bonds  being,  naturally,  to  insure  the 
ultimate  receipt  of  the  money  by  those  entitled  thereto,  and  thus  to 
relieve  the  Department  of  all  responsibility  in  the  matter,  moral  as 
well  as  legal.  Attorneys  or  representatives  of  entitled  beneficiaries 
must  file  powers  of  attorney  as  a  condition  of  payment. 

Occasionally,  before  making  a  payment,  the  Department  gives 
notice  of  a  proposed  payment  to  persons  claiming  an  interest  in  the 
fund,  when  such  notice  had  been  requested.  This  is  not,  however, 
the  usual  practice,  and  it  has  been  done  in  exceptional  cases  only. 

The  Secretary  of  State  being  properly  regarded  as  having  jurisdic- 
tion to  pass  only  upon  the  rights  of  those  who  are  initial  or  primary 
beneficiaries,  and  recognizing  only  these  primary  claimants  and  those 
holding  uncontested  instruments  of  transfer  of  interest  or  assignment 
from  them,  the  Secretary  has  on  numerous  occasions  declined  to  admit 
any  assertion  of  a  lien  upon  the  funds  in  his  hands  by  those  holding 
secondary  or  derivative  interests  by  virtue  of  certain  legal  relationships 
with  the  original  claimant.  If  the  primary  beneficiaries  have  no  such 
lien  or  legal  right,  ^  a  fortiori  those  holding  derivative  interests  are 
without  such  rights  so  long  as  the  funds  are  in  the  hands  of  the  govern- 
ment. The  complicated  questions  of  law  and  fact  which  are  incidental 
to  the  determination  of  the  various  kinds  of  derivative  rights  are  best 
left  to  the  jurisdiction  of  the  ordinary  courts  of  justice,  where  the  proper 
machinery  for  their  adjudication  is  provided.^ 

'  Notwithstanding  the  fact  that  the  statute  denominates  the  moneys  received  from 
foreign  governments  as  "trust  funds,"  no  court  has  yet  granted  the  claimant  the 
equitable  rights  of  a  cestui  que  trust,  nor  held  the  government  liable  as  a  trustee. 
The  statute  is  believed  merely  to  express  the  moral  obligation  inherent  in  the  receipt 
of  the  funds. 

*  A  summary  of  cases  in  which  suits  have  been  brought  against  beneficiaries  of 


METHOD    OF   MAKING    PAYMENT  395 

While  the  Secretary  of  State  has,  as  a  matter  of  convenience,  usually 
undertaken  to  pass  upon  claims  against  awards  when  the  case  seems 
clear,  he  has,  in  more  complicated  cases,  taken  the  position  that  he 
could  refer  the  claimants  to  the  Court  of  Claims  for  the  establishment 
of  their  various  interests.^  In  many  cases,  such  claimants  have  been 
referred  to  the  ordinary  courts.^  Prior  to  the  Act  of  1896,  the  Secre- 
tary either  deposited  the  money  in  a  bank,  by  agreement  with  the 
parties,  or  withheld  payment,  to  await  the  decision  of  the  court.  Under 
the  Act  of  1896,  upon  such  a  reference  to  the  courts,  the  Secretary 
may  suspend  the  issuance  of  his  certificate  upon  the  Secretary  of  the 
Treasury. 

§  159.  Method  of  Making  Payment. 

Having  himself  determined  or  become  satisfied  by  the  decision  of 
a  court,  who  the  entitled  claimants  are,  and  the  amounts  due  them 
respectively,  the  Secretary  of  State  then  issues  his  certificate  to  the 
Secretary  of  the  Treasury,  who,  according  to  the  statute,  must  pay 
the  amounts  mentioned  in  the  certificates  to  the  ascertained  benefi- 
ciaries thereof,  the  statute  itself  making  the  necessary  appropriation 
for  this  purpose.  These  certificates  are  issued  to  the  original  claimants, 
or,  as  a  matter  of  grace  and  accommodation  to  the  parties  in  interest, 
to  persons  holding  uncontested  assignments,  orders  for  payment, 
powers  of  attorney,  or  other  instruments  evidencing  a  direction  and 
willingness  on  the  part  of  the  original  beneficiary  to  have  the  sum  so 
paid.^  When  the  assignment  or  order  is  contested  by  the  person  grant- 
ing it  or  his  successor,  and  the  parties  cannot  agree  or  decline  to  sub- 
awards  or  their  successors  by  those  holding  derivative  rights  to  a  fund  is  presented 
in  Solicitor's  Opin.  In  re  Alsop  award,  28-30. 

^  Although  no  case  has  been  found  where  the  Secretary  has  actually  submitted  a 
case  of  this  kind  to  the  Court  of  Claims,  he  has  made  the  suggestion  to  claimants  on 
several  occasions,  and  it  would  seem  clear  that  he  has  the  right  so  to  refer  contesting 
claimants,  without  their  consent,  under  §  2  of  the  Bowman  Act,  Mar.  3,  1883,  22 
Stat.  L.  485  and  §  12  of  the  Tucker  Act,  Mar.  3,  1887,  24  Stat.  L.  505.  See  Billings 
('.  U.  S.,  23  Ct.  CI.  166,  173. 

2  Bayard  v.  White,  127  U.  S.  246;  Porter  v.  White,  128  U.  S.  235;  21  MS.  Sol.  Op. 
Dept.  of  State,  404,  cited  bj'  SoUcitor  Clark;  Solicitor's  Opinion  In  re  Distribution  of 
Alsop  award,  pp.  28-30. 

*  Solicitor's  Opinion  In  re  Distribution  of  Alsop  award,  p.  43. 


396  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

mit  their  differences  to  a  designated  tribunal  for  adjudication,  the 
Secretary  may  and  sometimes  does  issue  the  certificate  to  the  original 
claimant,  leaving  the  contesting  parties  to  assert  their  legal  or  equita- 
ble interests  in  any  portion  of  the  fund  in  a  suit  in  the  ordinary  courts 
against  the  payee  in  order  to  determine  the  ultimate  ownership  of  the 
fund  or  any  particular  portion  of  it.^ 

§  160.  Remedies  of  Rival  Claimants  or  Beneficiaries.     Secretary's 
Determination  not  Final. 

Persons  who  contest  a  distribution  made  by  the  Secretary,  or  rival 
claimants,  have  two  remedies  open  to  them:  (1)  They  may  sue  the 
person  to  whom  the  money  has  been  paid  in  an  action  for  money  had 
and  received,  and  thus  recover  from  such  person  such  money  as  may 
equitably  belong  to  the  plaintiff;  or  (2)  the  complaining  party  might, 
before  payment  of  the  money,  enjoin  the  other  from  receiving  any  of 
such  fund  from  the  Secretary  of  the  Treasury  (formerly  the  Secretary 
of  State). 

While  there  is  no  provision  in  the  statute  of  1896  for  an  appeal  from 
the  Secretary's  decision  or  for  a  review  of  his  findings  as  to  the  persons 
entitled  to  share  in  the  award,  the  money  being  in  fact  appropriated 
to  pay  "to  the  ascertained  beneficiaries  thereof  of  the  certificates" 
issued  by  the  Secretary  of  State,  it  seems  clear,  notwithstanding  the 
absence  of  any  adjudication  by  the  courts  upon  the  question  of  the 
finality  of  the  Secretary's  determination,  that  it  is  final  only  in  the  sense 
that  it  cannot  be  set  aside  by  any  court  and  that  no  action  against  the 
government  or  any  official  thereof  can  be  brought  by  dissatisfied  payees 
or  others.  In  the  matter  of  the  ultimate  ownership  of  the  fund,  how- 
ever, and  the  conflicting  claims  of  persons  holding  derivative  rights — 
questions,  indeed,  which  the  Secretary  is  not  presumed  to  have  deter- 
mined— his  decisions  and  findings  are  not  conclusive,  any  more  than 
are  the  awards  of  claims  commissions  regarding  the  oAvnership  of  the 
funds  with  the  distribution  of  which  they  are  charged  by  treaty  or 
statute.  To  regard  the  Secretary's  determination  as  conclusive  upon 
these  secondary  claimants,  would  make  it  a  judgment  in  rem,  a  mani- 

'  Municipal  courts  pass  only  upon  the  disposition  of  the  fund,  not  the  merits  of 
the  original  claim  (Comegys  v.  Vasse,  1  Pet.  193),  unless  Congress  specifically  refers 
the  whole  claim  to  the  Court  of  Claims  or  a  domestic  tribunal. 


EXPENSES    OF   ARBITRATION    USUALLY    CHARGED    TO    CLAIMANTS       397 

fest  impossibility.  Moreover,  the  absence  of  all  machinery  in  the  De- 
partment for  conducting  judicial  inquiries  and  the  fact  that  the  Secre- 
tary is  not  always  a  trained  lawyer  and  other  practical  considerations 
of  a  political  nature/  all  point  to  the  certainty  that  the  Secretary's 
determination  is  not  final  upon  the  question  of  ownership  of  the  fund, 
nor  coEifilusive  upon  derivative  claimants.  The  courts,  therefore,  in 
the  manner  already  indicated,  are  always  open  to  such  claimants  against 
the  individuals  to  whom  awards  may  have  been  distributed. 

§  161.  Expenses  of  Arbitration  Usually  Charged  to  Claimants. 

It  may  be  added  that  the  government  frequently  provides  for  the 
payment  by  the  claimants  of  the  expenses  of  an  arbitration,  deducting 
the  government's  share  from  the  awards  distributed  to  claimants. 
The  deduction  of  these  expenses  from  awards  is  occasionally  provided 
for  in  the  treaty  establishing  the  arbitral  commission.^  In  the  case 
of  the  Alabama  awards  under  the  Act  of  1874,  the  expenses  of  the  ar- 
bitration were  not  deducted  from  the  awards.^  In  the  submission  of 
single  claims  to  arbitration,  various  terms  may  be  made,  e.  g.,  the 
claimant  and  the  defendant  government  may  bear  the  expenses  in 

'  Solicitor's  Opinion  In  re  Distribution  of  Alsop  award,  p.  41. 

^  Sometimes  only  the  expenses  of  the  Commission  are  so  provided  for,  each  govern- 
ment paying  its  own  arbitrator,  secretary  and  agent  or  counsel.  See,  as  examples  of 
clauses  providing  for  deduction  of  expenses  from  awards,  the  treaty  between  U.  S. 
and  Chile  of  Aug.  7,  1892,  art.  10,  Malloy,  I,  188;  between  U.  S.  and  France,  Jan.  15, 
1880,  art.  10,  Malloy,  I,  538;  between  U.  S.  and  Great  Britain,  Feb.  8,  1853,  art.  6, 
Malloy,  I,  667;  between  U.  S.  and  Great  Britain,  May  8,  1871,  art.  16,  Malloy,  I, 
707;  between  U.  S.  and  Mexico,  July  4,  1868,  art.  6,  MaUoy,  I,  1131;  between  U.  S. 
and  Peru,  Dec.  4,  1868,  art.  6,  Malloy,  II,  1413.  In  all  these  cases  the  deduction 
was  not  to  exceed  5  per  cent  of  the  awards.  In  the  conventions  between  Great 
Britain  and  Chile,  Sept.  26,  1893  (85  St.  Pap.  24)  and  Sept.  29,  1887  (78  St.  Pap.  774), 
between  Great  Britain  and  Nicaragua,  Nov.  1,  1895  (87  St.  Pap.  55),  and  between 
Italy  and  Chile,  1888  (For.  Rel.,  1888,  I,  187),  the  amount  to  be  deducted  was  not 
to  exceed  6  per  cent.  In  the  recent  compromis  of  Dec.  18,  1913  between  France  and 
Turkey  (41  Clunet,  1914,  1444),  France  undertook  to  retain  10  per  cent,  of  awards 
for  expenses.  Article  7  of  the  protocol  of  Nov.  25,  1899  between  Italy  and  Peru, 
left  the  percentage  to  be  deducted  for  expenses  to  the  determination  of  the  Abri- 
trator.    Descamps  and  Renault,  Rec.  int.  des  traites  du  xx^  siecle,  1901,  p.  701. 

3  U.  S.  V.  Weld,  127  U.  S.  51  (23  Ct.  CI.  126).  In  the  agreement  of  Feb.  12,  1871 
with  Spain,  it  was  provided  that  the  expenses  of  the  arbitration  were  to  be  defrayed 
by  a  percentage  to  be  added  to  the  amount  awarded  (Malloy,  II,  1663).  This  re- 
lieved claimants  of  the  obligation  to  bear  the  expenses  of  arbitration. 


398  THE    DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

equal  proportions.^  When  the  protocol  of  submission  contains  no 
stipulation  as  to  deductions  from  awards  to  cover  expenses,  the  prose- 
cuting government  may  charge  its  entire  expenses  upon  the  claimants.^ 
The  reimbursement  of  the  government's  expenses  requires  no  special 
agreement  or  understanding  with  the  claimants.  The  government's 
complete  control  over  the  indemnity  received  enables  it  to  deduct  from 
any  amount  to  be  distributed  such  expenses  as  it  may  deem  properly 
chargeable  to  the  award.  A  government  may  even  require  claimants 
to  deposit  in  advance  a  percentage  of  the  sum  claimed,  to  cover  expenses 
and  as  an  earnest  of  good  faith.  A  demand  by  Germany  for  a  deposit 
of  2  per  cent  of  the  sums  claimed  by  its  subjects  from  Haiti  in  the 
German-Haitian  arbitration  of  1913  is  reported  as  having  resulted 
in  the  withdrawal  of  a  considerable  number  of  claims.^ 

'  Ozama  Bridge  claim  (U.  S.)  v.  Dominican  Rep.,  Mr.  Powell  to  Gen.  Heureaux, 
Mar.  5,  1898,  For.  Rel.,  1898,  276.  Such  division  may  be  conditioned  upon  success 
of  claimant  in  the  arbitration.  Freraut  (France)  v.  Chile,  July  3,  1897,  art.  5,  For. 
Rel.,  1897,  p.  53. 

2  This  was  done  in  the  case  of  the  Pious  Fund  claim  against  Mexico  submitted  to 
the  Hague  tribunal,  and  in  the  Alsop  claim  against  Chile,  submitted  to  His  Britannic 
Majesty.  In  the  Alsop  case,  there  was  an  agreement  between  the  parties  stipulating 
for  such  deduction.    Solicitor's  Opinion,  op.  cit.,  79. 

^  Such  a  deposit  of  "security  for  costs"  is  most  unusual.  It  may  serve  to  eliminate 
claimants  in  bad  faith,  but  may  also  disable  and  work  an  unnecessary  hardship  upon 
needy  claimants. 


CHAPTER  V 
EXTENT  OF  PROTECTION 

§  162.  Factors  Determining  Measure  of  Protection. 

The  discretion  possessed  by  the  government  in  the  grant  of  diplo- 
matic protection  and  in  the  prosecution  of  claims  is  well  illustrated 
by  the  different  degrees  of  protection  which  it  exercises  on  various 
occasions.  These  variations  in  the  extent  of  protection  depend  pri- 
marily upon  the  nature  of  the  offense  or  injury  to  be  redressed.  Other 
factors  which  enter  into  consideration  in  determining  the  extent  of 
protection  are  the  character  and  reputation  of  the  local  government 
for  the  proper  administration  of  justice,  the  political  expediency  of 
instituting  harsh  or  mild  measures,  the  conduct  and  character  of  the 
claimant  with  respect  to  his  title  to  diplomatic  protection,  the  nature 
of  the  claim,  tortious  or  contractual,  and  the  need  of  the  claimant. 
For  these  reasons,  it  is  impossible  to  state  wdth  any  degree  of  precision 
the  measure  of  protection  which  in  a  given  case  will  be  accorded  to 
American  interests  abroad,  for  the  action  of  the  government  necessarily 
depends  upon  all  the  facts  and  circumstances  of  the  case,  and  the  prin- 
ciples of  international  law  applicable  thereto.  Nevertheless,  notwith- 
standing the  absence  of  any  definite  controlling  principle,  it  may  not 
be  wvithout  interest  to  examine  certain  classes  of  cases  in  which  an 
attempt  has  been  made  to  follow  a  consistent  practice. 

It  frequently  happens  that  an  American  citizen  contemplating  in- 
vestment in  a  foreign  enterprise  or  departure  from  the  United  States 
for  the  purpose  of  engaging  in  business  abroad  inquires  of  the  Depart- 
ment of  State  what  governmental  protection  or  assistance  he  may 
expect  or  rely  upon.  Such  an  inquirer  is  usualty  informed  that  the 
Department  cannot  undertake  to  answer  In^pothetical  questions, 
or  anticipate  its  action  or  forecast  the  effectiveness  of  its  assistance 
in  a  given  case,  since  the  questions  of  international  law  usually  involved 
in  such  cases,  depending  as  they  do  upon  individual  facts  and  circum- 

399 


400  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

stances,  do  not  readily  admit  of  decision  in  advance  of  an  actual  case. 
The  Department  usually  adds,  however,  that  it  is  always  solicitous  that 
rights  of  American  citizens  abroad  should  receive  from  foreign  govern- 
ments the  respect  due  to  them  under  existing  treaties  and  international 
law,  and  that  the  Department  is  always  ready  to  take  up  with  a  for- 
eign government  the  question  of  adjusting  any  wrongs  which  American 
citizens  may  have  sustained  in  their  persons  or  in  their  just,  fair  and 
equitable  property  rights  which  have  been  acquired  by  proper  and 
legal  methods.  The  inquirer  is  further  advised  that  the  government 
is  represented  abroad  by  consular  and  diplomatic  officers,  to  whom 
American  citizens  may  appeal  when  they  deem  their  rights  violated 
or  in  imminent  danger  of  violation.  In  an  instruction  to  consular 
officers,  dated  August  25,  1898,  consuls  were  urged  to  be  vigilant  in 
the  protection  of  American  citizens  in  their  consular  districts.  The 
instructions  concluded  with  the  following  paragraph : 

"You  are  directed  to  be  prompt  and  active  in  reporting  to  the  De- 
partment all  cases  of  arrest  of  American  citizens  or  of  outrages  upon 
their  rights.  You  will  also  be  ready  at  all  times  to  do  your  utmost  in 
behalf  of  our  citizens  and  for  the  protection  and  extension  of  their  in- 
terests." ^ 

§  163.  Fostering  American  Interests  Abroad. 

In  the  encouragement  of  American  enterprises  abroad,  the  govern- 
ment lends  its  support  to  such  as  are  legitimate  and  nationally  benefi- 
cial, the  degree  of  support  being  measured  by  the  national  advantages 
to  be  expected.  In  his  Annual  Message  of  1909,  President  Taft  de- 
clared that  in  considering  whether  American  enterprise  should  be  en- 
couraged in  a  particular  country,  "the  government  should  give  full 
weight  ...  to  the  fact  whether  or  not  the  government  of  the  country  in 
question  is  in  its  administration  and  in  its  diplomacy  faithful  to  the  prin- 
ciples of  moderation,  equity  and  justice  upon  which  alone  depend  inter- 
national credit,  in  diplomacy  as  well  as  in  finance."  ^  Such  encourage- 
ment is  most  frequently  sought  in  the  exploited  countries  of  Latin- 

'  Thos.  W,  Cridler,  Third  Asst.  Sec'y  to  the  consular  officers  in  Mexico,  Central 
America  and  South  America,  August  25,  1898. 

'  For.  Rel.,  1909,  xv.  As  to  cable  concessions  in  South  America,  considered  a  na- 
t'onal  advantage,  see  Sec'y  Bayard  quoted  in  Moore's  Dig.  VI,  326. 


PREVENTIVE   MEASURES  401 

America  and  in  the  Near  and  Far  East.  In  such  cases,  the  Department 
usually,  upon  request,  instructs  its  diplomatic  representative  accredited 
to  the  country  in  question  to  use  such  influence  as  he  legitimately  may 
to  secure  consideration  for  the  American  interests  requesting  support- 
without  discriminating,  however,  against  other  American  interests. 
The  Department  of  State  does  not  attempt  to  endorse  individuals  as 
to  their  responsibility  nor  to  exjjress  any  judgment  as  to  business  enter- 
prises, beyond  bringing  them  to  the  attention  of  the  authorities  abroad 
through  American  diplomatic  representatives.^  Applicants  for  con- 
cessions in  Cuba  and  the  Dominican  Republic,  and  in  other  Latin- 
American  Republics  to  which  the  Piatt  Amendment  might  be  extended, 
must  necessarily  secure  the  Department's  approval  of  the  concession 
before  it  may  be  granted,  and  it  is  becoming  a  practice  for  American 
concessionaires  in  other  Latin-American  countries  to  submit  the  terms 
of  a  proposed  concession-contract  to  the  Department  for  approval. 
By  so  doing,  the  legitimacy  of  the  concession  may  be  examined,  and 
eventual  protection  facilitated. 

§  164.  Preventive  Measures. 

Although  it  is  unusual  to  extend  protection  in  advance  of  an  actual 
occurrence  rendering  interposition  proper,  the  government  has  not 
infrequently  filed  a  diplomatic  protest  against  proposed  municipal 
legislation  of  foreign  countries  which,  if  enacted,  would  impair  the 
rights  or  interests  of  American  citizens.  Sometimes  the  diplomatic 
representative  is  instructed  to  use  his  good  offices  to  bring  to  the  at- 
tention of  the  government  to  which  he  is  accredited  the  injurious  ef- 
fect upon  American  trade  and  commerce  of  proposed  municipal  legisla- 
tion. Thus,  objections  of  this  government  against  a  proposed  increase 
of  a  foreign  tariff  rate  which  seemed  prohibitive  to  American  commercial 
interests  have  been  diplomatically  presented.  In  like  manner,  protests 
have  been  filed  against  proposed  monopolies  which  appeared  violative 
of  treaty  rights  or  inimical  to  American  trade."  Good  offices  have 
been  employed  ^  and  protests  filed  against  the  application  to  American 

^  See  as  to  applications  for  financial  concessions  in  Turkey,  For.  Rel.,  1909,  59f 
*  Protest  to  Haiti  against  grant  of  a  soap  monopoly  to  certain  French  concerns, 
1907-1908.    See  also  supra,  p.  182. 
'  Good  offices  were  used  to  secure  modification  of  order  prohibiting  American  life 


402  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

citizens  of  enacted  legislation  abroad  which,  if  enforced,  would  be 
deemed  to  violate  the  rights  of  an  American  citizen,  whether  under 
municipal  law,  treaty,  or  international  law.^ 

What  might  be  called  preventive  measures  of  protection  are  occa- 
sionally employed  in  that  subjects  going  abroad  are  warned  to  provide 
themselves  with  certain  documents  calculated  to  reUeve  them  of  the 
embarrassment  of  detention,  examination  or  other  burdens.^ 

The  most  usual  method  of  safeguarding  and  fostering  the  rights 
and  interests  of  citizens  is  by  means  of  international  treaties  and  con- 
ventions. With  the  growth  of  international  intercourse  these  treaties 
have  covered  a  wider  and  wider  range  of  subjects,  until  at  the  present 
time  the  measure  of  the  alien's  civil  and  commercial  rights  is  largely 
to  be  found  in  treaties.  To  some  extent,  the  principal  rights  of  aliens — 
or  citizens  abroad — have  been  considered  in  the  chapter  on  aliens.^ 
At  this  point,  it  is  merely  necessary  to  note  that  the  measure  of  the 
rights  of  citizens  abroad  and  therefore  the  measure  of  the  extent  of 
protection  for  infringement  thereof  is  to  be  found  largely  in  treaties. 

§  165.  Request  for  Locsd  Protection  in  Foreign  Country. 

Under  ordinary  circumstances,  the  first  step  in  the  exercise  of  the 
protective  function  is  to  demand  of  the  local  government  the  full 
measure  of  local  protection  which  its  laws  afford.'*     Assuming  that 

insurance  companies  from  doing  business  in  Prussia.  H.  Doc.  247,  54th  Cong.,  1st 
sess.;  For.  Rel.,  1895,  I,  428-453.  As  to  Argentine,  see  Moore's  Dig.  VI,  326,  and 
as  to  Chile,  For.  Rel.,  1896,  43. 

'  Objection  noted  to  Guatemalan  decree  providing  for  imprisonment,  in  case  of 
fire,  of  beneficiary  of  insurance  policy.  Mr.  Adee,  Acting  Sec'y  of  State,  to  Minister 
Sands,  For.  Rel.,  1909,  344.  Protest  against  certain  interpretation  of  Honduranean 
law  relating  to  national  vessels.  Mr.  Adee  to  Minister  Brown,  Sept.  7,  1909,  For. 
Rel.,  1909,  368.  As  to  protests  against  prohibitions  or  restrictions  by  foreign  coun- 
tries on  the  importation  of  cattle,  hogs  and  beef,  see  For.  Rel.,  1891,  under  various 
countries. 

^  E.  g.,  British  subjects  going  to  Argentine  were  instructed  to  provide  themselves 
with  birth  certificates  and  protection  papers  to  escape  militarj'  service.  Notification 
of  August  22,  1898;  90  St.  Pap.  1176.  Unusual  precautions  in  the  matter  of  pass- 
ports, such  as  attaching  an  unmounted  photograph  to  the  passport,  have  been  adopted 
by  the  Dept.  of  State  in  the  case  of  American  citizens  going  to  Europe  du-nng  the 
present  European  war. 

'  Supra,  §  34  ct  S'q. 

*  See  the  discussion  of  the  rights  of  aliens,  sujyra,  §  17  et  seq. 


REQUEST   FOR   LOCAL    PROTECTION    IN    FOREIGN    COUNTRY  403 

the  government  is  properly  organized,  such  a  suggestion  will  often 
suffice  to  prevent  a  flagrant  violation  of  the  rights  of  aliens.  The 
United  States,  for  example,  has  on  many  occasions  called  on  Turkey 
and  China  to  afford  protection  to  American  citizens  and  prevent  attacks 
]3y  brigands  and  others.^  Again,  when  an  American  citizen  is  arrested 
abroad  charged  with  a  penal  offense,  the  diplomatic  officer's  first  duty 
is  to  see  that  he  receives  the  benefit  of  the  safeguards  against  oppressive 
treatment  provided  by  the  local  law  and  that  his  trial  is  conducted 
fairh'.  While  in  first  instance  the  protection  of  aliens  is  a  matter  in- 
cumbent upon  the  local  government,  and  foreign  governments,  in 
the  absence  of  a  flagrant  case,  usually  advise  their  subjects  to  resort 
to  the  local  courts  for  the  redress  of  their  grievances,-  it  is  nevertheless 
bej'^ond  dispute  that  the  local  government  cannot  be  the  final  judge 
of  its  own.  conduct.  Indeed,  foreign  governments  are  conceived  to 
have  the  right  and  duty  to  determine  whether  their  subjects  have  been 
accorded  the  protection  due  them  under  public  law  and  the  applicable 
treaties.  Diplomatic  interposition  then,  if  deemed  proper,  is  the  sub- 
stitution bj^  the  protecting  state  of  its  own  action  for  that  of  the  local 
state  based  upon  default  in  a  function  originally  incumbent  upon  the 
latter. 

In  this  connection,  it  is  interesting  to  note  that  when  the  attention 
of  the  United  States  is  called  to  the  delinquency  of  local  authorities 
in  complying  with  a  treaty  or  municipal  law,  to  the  detriment  of  a 
foreigner,  the  Department  of  State  must  address  the  Governor  of  the 
state  calling  his  attention  to  the  complaint  and  requesting  a  removal 
of  the  cause  or  appropriate  measures  of  satisfaction.  If  the  Governor, 
however,  does  not  secure  the  enforcement  of  the  treaty  or  mmiicipal 
law  by  the  local  authorities,  the  federal  government  has  no  machinery 
to  compel  his  action,  and  in  mob  violence  cases,  as  has  been  observed, 
has  often  had  to  pay  hea"s^'  indemnities  for  the  failure  of  the  states 
properly  to  enforce  or  vindicate  the  treaty  rights  of  foreigners.    When 

»  For.  Rel.,  1895,  II,  1237  et  seq.;  1318  et  seq.;  For.  Rel.,  1907,  II,  1071.  For  a  case 
in  Haiti,  where  local  protection  was  first  demanded,  see  For.  Rel.,  1904,  397.  See  also 
Marquis  Salisbury  to  Mr.  Ashburnham,  Feb.  16,  1880,  75  St.  Pap.  1059  (case  in 
Bulgaria);  Lord  Granville  to  Sir  C.  Wyke,  Dec.  24,  1883,  75  St.  Pap.  456;  Field, 
Adm.,  V.  U.  S.,  Act  of  Jan.  20,  1885,  27  Ct.  CI.  224. 

"^  Infra,  §381  et  seq. 


404  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

new  treaties  are  concluded  or  a  particular  provision  of  a  treaty  has  not 
been  enforced  by  the  states,  the  Department  sometimes  informs  the 
governors  of  the  various  states  of  the  terms  of  the  treaty  provision  in 
question,  and  requests  its  enforcement.^ 

The  Instructions  to  Diplomatic  Officers  provide  that  diplomatic 
representatives  of  the  United  States  should  "protect  [American  citi- 
zens] before  the  authorities  of  the  country  in  all  cases  in  which  they 
may  be  injured  or  oppressed,  but  their  efforts  should  not  be  extended 
to  those  who  have  been  willfully  guilty  of  an  infraction  of  the  local 
laws.  It  is  their  [diplomatic  officers']  duty  to  endeavor,  on  all  occa- 
sions, to  maintain  and  promote  all  rightful  interests  and  to  protect 
all  privileges  that  are  provided  for  by  treaty  or  are  conceded  by  usage."  ^ 

§  166.  Consular  Administration  of  Decedents'  Estates. 

Specific  and  detailed  instructions  are  given  as  to  the  duties  of  consuls 
in  caring  for  the  estates  of  their  deceased  nationals  dying  intestate 
within  their  jurisdiction.^  The  extent  of  their  right  to  interfere,  how- 
ever, depends  upon  the  applicable  treaties  and  upon  the  local  law.* 
Foreign  consuls  in  the  United  States,  it  seems,  have  not  the  right  of 
consular  administration  as  against  a  public  or  other  administrator 
appointed  under  a  state  law  by  a  probate  court. ^  This  is  believed  to 
be  the  case  even  under  the  treaty  of  1910  with  Sweden,^  which  gives 
extensive  rights  to  consuls  in  the  care  of  the  estates  of  deceased  na- 
tionals. When  there  is  no  conflict  with  local  law,  consuls  have  been  held, 
under  various  treaties,  to  be  entitled  to  appointment  as  administrators.^ 

1  E.  g.,  Request  for  observance  of  art.  XVI  of  the  consular  convention  with  Austria- 
Hungary,  June  11,  1870,  For.  Rel.,  1907,  I,  52-55. 

2  Instructions  to  diplomatic  officers,  1897,  §  173. 
»  R.  S.,  §  1709, 

^  Consular  regulations,  1896,  parag.  385-416.  Instructions  to  diplomatic  officers, 
1.H97,  §§  184-185. 

5  Rocca  V.  Thompson,  223  U.  S.  317.  See  also  Matter  of  D  Adamo  (1914),  212  N.  Y. 
214,  reversing  144  N.  Y.  Suppl.  429.  See  also  Ludwig,  Ernest,  Consular  treaty  rights 
and  comments  on  the  "most  favored  nation"  clause,  Akron,  1913.  This  book,  while 
crude,  presents  most  of  the  American  decisions  in  point. 

6  Treaty  of  June  1,  1910,  art.  XIV,  MaUoy's  Treaties,  III  (Charles),  112,  117. 
Matter  of  D'Adamo,  212  N.  Y.  214;  Justice  Day's  dictum  in  Rocca  v.  Thompson 
considered  inapplicable. 

^  Austro-Hungarian  Consul  v.  Westphal,  120  Minn.  122,  139;  Matter  of  D'Adamo, 
212  N.  Y.  214,  225  {diclum);  Matter  of  Hohnberg's  Estate,  193  Fed.  260. 


DEGREE  OF  ASSISTANCE   IN   CERTAIN   CASES  405 

§  167.  Degree  of  Assistance  in  Certain  Cases. 

Unfair  treatment  to  American  concessionaires,  whether  under  the 
guise  of  legahty  or  not,  will  result  in  a  protest  from  the  Department 
of  State.  If  merely  a  threatened  infringement  of  American  interests, 
good  offices  will  be  employed  to  prevent  actual  damage.  If  the  viola- 
tion of  rights  has  occurred,  the  diplomatic  action  will  assume  more 
vigorous  form,  depending  upon  the  flagrancy  of  the  offense  and  all  the 
circumstances  of  the  case.^ 

When  the  responsibihty  of  a  foreign  government  is  moral,  and  not 
necessarily  legal,  the  United  States  will  nevertheless  endeavor  by  all 
amicable  means  to  obtain  justice  for  its  citizens.  Thus,  the  accidental 
killing  of  an  American  naval  officer  by  stray  bullets  from  a  French 
warship  engaged  in  rifle  practice  induced  the  United  States  to  appeal 
to  the  sense  of  justice  of  the  French  government  to  make  repara- 
tion for  the  injury  to  the  bereaved  family.- 

During  the  European  war  of  1914,  numerous  vessels  carrying  cargo 
belonging  to  American  citizens  were  instructed  to  present  their  claims 
before  the  prize  court  by  private  counsel,  with  proof  of  ownership  and 
the  non-contraband  character  of  the  goods.  The  Department  of  State 
does  not  ordinarily  intervene  diplomatically  to  present  the  claims  of 
individuals  to  prize,  or  indeed  to  any  other  courts;  but  it  may,  if  re- 
quested, instruct  the  nearest  consular  officer  to  investigate  and  report 
upon  the  case  to  the  Department,  and  informally  to  give  notice  of  the 
claim  to  the  court,  or  select  some  attorney  to  represent  the  owners 
before  the  prize  court.  It  may  be  said  that  in  all  cases  where  American 
citizens  are  engaged  in  litigation  abroad  under  circumstances  render- 
ing them  subject  to  the  local  law  and  disentitled  to  demand  diplomatic 
protection,  the  Department's  assistance  is  confined  to  suggesting  coun- 
sel, or,  on  request,  engaging  the  services  of  an  attorney.  Obviously, 
however,  the  government  assumes  no  responsibihty  for  the  integrity, 

^  See  N.  Y.  and  Bermudez  Co.  claim  v.  Venezuela;  efforts  of  the  Dept.  of  State  to 
obtain  justice  for  the  company  during  the  sequestration  proceedings,  Sen.  Doc.  413, 
60th  Cong.,  1st  sess.,  139,  140;  Guayaquil  and  Quito  Ry.  Co.  v.  Ecuador,  For.  Rel., 
1907,  I,  385. 

2  Mr.  Root,  Sec'y  of  State,  to  Mr.  McCormick,  Nov.  13,  1906,  For.  Rel.,  1907,  I, 
398,  citing  several  cases  in  which  the  U.  S.  had  voluntarily  paid  compensation  to 
foreigners  for  injuries  sustained  through  the  carelessness  of  American  officers. 


406  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

competence  or  reliability  of  the  counsel  employed,  nor  for  the  financial 
responsibility  of  the  employing  client. 

§  168.  The  Backward  Countries  of  Near  and  Far  East. 

In  the  case  of  semi-civilized  or  backward  countries,  as  will  be  more 
fully  observed  hereafter,  a  greater  degree  of  international  responsibility 
is  imposed  upon  the  local  government  than  in  countries  of  normal 
development.  For  example,  injuries  to  the  person  or  property  of 
American  citizens  in  China  lead  to  a  demand  for  indemnity  whether 
an  official  or  individual  was  the  actual  wrongdoer,  China  being  held  lia- 
ble practically  as  a  guarantor  of  the  security  of  foreigners.  The  weaker 
the  control  of  the  police,  or  the  local  safeguards  for  the  protection  of 
foreigners  and  the  proper  administration  of  justice,  the  greater  and 
more  rigorous  becomes  the  diplomatic  protection  exerted  by  foreign 
governments  and  the  harsher  the  demand  for  prompt  satisfaction  for 
violation  of  the  rights  of  person  or  property  of  an  alien.  Thus,  for  the 
killing  of  American  citizens  in  China,  Turkey  or  Persia  demands  are 
made  which  would  not  be  thought  of  in  the  case  of  a  similar  injury  in 
a  country  of  higher  standards  of  civilized  administration.  Again,  the 
majority  of  Latin- American  countries  are  held  by  various  countries 
of  Europe  to  a  higher  degree  of  responsibility  for  injuries  inflicted  upon 
aliens  than  are  countries  like  the  United  States  or  Canada.  The  de- 
mand in  case  of  personal  violence  to  an  alien  takes  various  forms,  as 
has  been  observed  in  the  study  of  the  international  responsibility  of 
the  state.  Besides  a  claim  for  pecuniary  indemnity,  the  demand  may 
include  the  dismissal  of  delinquent  police,  the  punishment  of  guilty 
offenders,  and  the  institution  of  measures  considered  adequate  or 
likely  to  prevent  a  recurrence  of  the  offense.  In  the  Labaree  claim 
against  Persia,  the  demand  of  the  United  States  for  indemnity  was 
joined  to  a  condition  that  "the  amount  of  the  indemnity  should  not 
be  recovered  by  special  tax,  or  by  other  device  or  pretext  exacted  from 
the  innocent  inhabitants  of  the  province."  ^  Only  upon  a  backward 
country  could  such  a  condition  be  imposed. 

'  For.  Rel.,  1905,  722,  723.  See  also  For.  Rel.,  1904-1907,  under  Persia.  See 
peculiarly  onerous  conditions  imposed  on  China  for  murder  of  a  Chinese  hospital 
student  in  1898,  For.  Rel.,  1898,  191-200. 


f\ 


CRIMINAL   PROCEEDINGS   ABROAD  407 

§  169.  Miscellaneous  Cases. 

In  the  case  of  ordinary  contract  claims,  as  has  been  observed,^  the  gov- 
ernment's interposition  is  usually  confined  to  the  use  of  good  offices  in 
behalf  of  American  citizens.  The  circumstances  under  which  more 
vigorous  measures  may  be  undertaken  have  been  fully  set  forth  in 
the  study  of  contractual  claims. 

The  Act  of  July  27,  1868  -  declared  it  to  be  the  duty  of  the  President, 
in  case  an  American  citizen  is  unjustly  deprived  of  his  liberty  by  the 
authority  of  a  foreign  government,  to  demand  the  reasons  for  such 
imprisonment,  but  prohibited  his  use  of  the  military  or  naval  power 
of  the  government  to  obtain  his  release.  The  extent  to  which  the 
Department  has  exerted  its  power  in  behalf  of  American  citizens  im- 
prisoned abroad  will  be  considered  presently. 

The  Act  of  1868  also  provided  that  naturalized  citizens  are  entitled 
to  equal  protection  abroad  with  native  citizens.  The  title  of  natural- 
ized citizens  abroad  to  claim  American  protection  is,  however,  largely 
affected  by  treaties  and  by  the  Act  of  March  2,  1907.  It  seems  de- 
sirable to  postpone  for  the  present  the  study  of  the  protection  accorded 
to  naturaUzed  citizens.' 

Under  the  guano  acts,  American  citizens  who  discover  guano  are 
protected  in  the  prosecution  of  their  enterprise,  which  extends,  how- 
ever, only  to  the  appropriation  and  removal  of  the  guano.  ^ 

§  170.  Criminal  Proceedings  Abroad. 

In  cases  of  judicial  proceedings  against  a  citizen  held  under  criminal 
charges  the  government,  in  countries  where  civilized  justice  is  admin- 
istered, usually  confines  itself  to  securing  for  the  accused  the  guarantees 
of  local  law  and  the  equality  of  treatment  with  natives  which  is  gener- 
ally provided  for  by  treaty.  Among  other  matters,  the  diplomatic  or 
consular  officer  is  instructed  to  see  to  it  that  accused  persons  are  ap- 
prized of  the  specific  offense  with  which  they  are  charged,  and  for  thia 

i^wpra,  §§112,  113. 

2 15  Stat.  L.  223;  For.  Rel.,  1873,  II,  1189. 

'  See  infra,  §§  231  e<  seq. 

*  R.  S.,  §  5570. 


408  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

purpose  the  officer  may  seek  the  desired  information  from  the  local 
Ministry  of  Foreign  Affairs.^ 

When  citizens  are  arrested  on  shipboard  in  foreign  ports,  American 
consular  officers  have  no  authority  to  approve  or  disapprove  the  pro- 
ceeding. But  in  Latin-American  countries  a  custom  appears  to  have 
grouTi  up  not  to  cause  an  arrest  on  shipboard  without  first  obtaining 
the  consent  of  the  minister  or  consul,  and  if  this  consent  is  refused,  the 
arrest  is  rarely  made.  Where  an  arrest  is  about  to  be  made  in  an  ar- 
bitrary manner,  not  in  accordance  with  proper  action  under  legal 
process,  the  appropriate  diplomatic  or  consular  officer  is  instructed 
to  protest  with  a  vigor  commensurate  with  the  threatened  unnecessary 
danger  to  life  or  property,  and  to  report  the  matter  to  his  government. 
Torture  inflicted  by  an  officer  of  justice  upon  an  American  citizen  ar- 
rested on  suspicion,  to  extort  from  him  a  confession  of  guilt,  gave 
rise,  in  a  case  in  Venezuela,  to  a  demand  for  indemnity.^ 

The  government  may  protest  against  an  unduly  protracted  imprison- 
ment,^ and  request  an  early  trial  for  its  citizen.  It  may  ask  for  his 
release  on  bail,  where  the  cause  of  justice  is  thereby  equally  subserved, 
and  may,  if  the  quarters  in  which  he  is  detained  are  unsanitary,  request 
his  removal  to  more  comfortable  quarters.  This  has  occasionally 
been  done  in  some  of  the  countries  of  Latin-America.  At  the  trial, 
notwithstanding  frequent  differences  in  criminal  procedure  from  country 
to  country,  the  government  may  demand  that  its  accused  citizen  be 
confronted  with  the  witnesses  against  him,  and  that  he  have  the  right 
to  be  heard  in  his  o^^Tl  defense,  personally  or  by  counsel, — in  other 
words,  that  he  have  a  fair  and  impartial  trial  with  the  presumption 
of  innocence  surrounding  him  until  his  guilt  is  established  by  competent 
and  sufficient  evidence,  and  that  the  law  be  applied  to  him  in  a  just 
and  equitable  manner.  To  assure  the  fairness  of  the  trial,  the  govern- 
ment may  send  a  consular  or  other  representative  to  watch  the  proceed- 
ings.^    If  the  trial  has  been  unjust,  the  government  may  demand  a 

1  Cases  in  Venezuela,  90  St.  Pap.  340,  For.  Rel.,  1898,  1137  et  seg.  The  Venezuelan 
Executive  Decree  of  Nov.  13,  1912,  art.  1,  provides  for  giving  such  information.  8 
A.J.  I.  L.  (1914),  Suppl.  175. 

*  For.  Rel.,  1884,  GOl. 
3  Ibid.,  1901,  407-41.5. 

*  Cases  in  China,  71  8t.  Pap.  950,  Baty,  op.  cit.,  175.    Austria-Hungary  sent  an 


FINANCIAL   RELIEF  409 

suspension  of  sentence,  or  if  an  unjust  conviction  was  obtained,  a  sus- 
pension of  execution.  In  the  cases  of  certain  sentences  imposed  upon 
American  citizens  by  a  court-martial  in  Cuba,  the  United  States  be- 
lieved the  sentences  to  have  been  unjust,  and  for  the  purpose  of  en- 
abling it  to  arrive  at  a  conclusion  in  the  matter,  asked  the  Spanish 
government  for  the  record  of  the  proceedings  of  the  court,  the  charges 
and  the  evidence,  and  for  information  as  to  the  opportunity  defend- 
ants had  to  defend  themselves  by  counsel  of  their  own  choice,  and  by 
examination  and  summoning  of  witnesses.  In  the  meantime,  a  sus- 
pension of  execution  was  demanded.^  The  government  will  also  in 
appropriate  cases  insist  that  no  cruel  or  unusual  punishment  be  in- 
flicted upon  a  convicted  citizen.  On  several  occasions,  the  Department 
of  State  has  authorized  the  employment  of  the  good  offices  of  its  dip- 
lomatic representative  abroad  in  an  endeavor  to  obtain  executive 
clemency  on  behalf  of  a  convicted  American  citizen.^  A  petition  for 
a  pardon  is  not,  however,  ofiicially  presented. 

When  the  rights  of  an  American  citizen  m  connection  with  criminal 
proceedings  have  been  mfringed,  the  government  may  present  a  claim 
for  a  denial  of  justice.  The  extent  of  the  reparation  demanded  naturally 
varies  with  the  gravity  of  the  offense  and  the  extent  of  the  injury. 
It  may  involve,  besides  a  claim  for  pecuniary  indemnity,  a  request  for 
the  removal  and  punishment  of  the  guilty  officer,  and  other  forms  of 
retribution  designed  to  serve  as  a  warning  and  to  prevent  a  recm-rence 
of  the  offense. 

§  171.  Financial  Relief. 

The  government  is  frequently  called  upon  to  provide  financial  relief 
or  transportation  to  the  United  States  to  destitute  or  insane  American 
citizens  abroad.  Except  in  the  case  of  destitute  seamen,  however, 
"there  is  no  general  appropriation  or  authority  for  the  relief  by  a  dip- 
lomatic representative  of  a  distressed  citizen  of  the  United  States  or 

attorney  to  watch  the  trial  of  an  American  sheriff,  charged  with  complicity  in  causing 
the  killing  of  certain  Austrian  subjects  in  the  Latimer  riot  cases.  For.  Rel.,  1898, 
111  et  seq. 

'Competitor  case  in  Cuba,  1896,  For.  Rel.,  1896,  711-746.  See  also  Mr.  Frel- 
inghuysen,  Sec'y  of  State,  to  Mr.  Lowell,  Dec.  11,  1883,  For.  Rel,  1883,  479. 

2  Moore's  Dig.  VI,  §921. 


410  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

for  furnishing  him  transportation  home."  ^  Various  governments  of 
Europe  make  provision  for  the  relief  by  consular  officers  of  their  indi- 
gent citizens  abroad,  and  in  1873,  President  Grant  urged  Congress, 
without  success,  to  grant  authority  for  the  extension  of  the  same  assist- 
ance to  American  citizens  abroad.^  The  United  States  adopts  the 
policy  of  taking  care  of  indigent  aliens  ^  as  of  indigent  natives,  although 
this  is  a  matter  within  the  jurisdiction  of  the  states  of  the  Union.  The 
federal  government,  therefore,  makes  the  same  response  to  requests 
by  state  officials  to  secure  the  return  to  their  native  countries  of  aliens 
who  have  become  public  charges  as  it  does  to  requests  by  foreign  coun- 
tries to  provide  for  bringing  back  to  this  country  destitute  American 
citizens  abroad,  namely,  that  as  there  are  no  government  funds  avail- 
able for  bringing  home  destitute  or  insane  American  citizens,  the 
United  States  cannot  ask  foreign  governments  to  assume  the  expense 
of  returning  their  indigent  nationals  in  this  country  to  their  original 
homes.  The  government,  however,  always  endeavors  to  communicate 
the  needs  of  indigent  American  citizens  abroad  to  their  relatives  or 
friends  in  this  country,  with  a  view  to  securing  relief  for  the  sufferers. 

The  United  States  cannot  insist  that  a  foreign  government  continue 
to  support  an  indigent  American  citizen  for  any  length  of  time,  nor 
can  it  raise  any  objection  to  his  being  deported  at  the  expense  of  the 
foreign  government.  Similarly,  state  officials  and  institutions  cannot 
be  compelled  to  harbor  an  alien  who  has  become  a  public  charge.  The 
states  will  generally  complj'^  with  the  duties  of  humanity,  but  cannot 
be  prevented  from  ridding  themselves,  at  their  own  expense,  of  unde- 
sirable aliens  who  have  become  permanent  public  charges,  by  sending 
them  to  their  original  homes  abroad.  The  obligation  of  repatriation, 
possibly  the  strongest  right  and  duty  incident  to  nationality,  requires 
the  state  to  receive  its  own  citizen.     Some  foreign  countries,  e.  g., 

'  Instructions  to  the  diplomatic  officers  of  the  U.  S.,  1897,  §  175.  For  the  provi- 
sions for  the  rehef  of  destitute  seamen  and  their  transportation  home,  see  Consular 
Regulations,  189G,  arts,  xv  and  xvi. 

^  Annual  message  of  Dec.  2,  1873,  Richardson's  messages,  vii,  191. 

'  Moore's  Dig.  Ill,  §  486.  An  exception  is,  of  course,  to  be  noted  in  the  case  of 
ahens  who  become  public  charges  within  three  years  after  their  admission.  Such 
ahens  may  lawfully  be  deported.  Section  20  of  the  Immigration  Act  of  1907,  Bouve, 
op.  cil.,  699. 


FINANCIAL   RELIEF  411 

Russia  and  Luxemburg,  provide  by  legislation  for  the  return  at  public 
expense  of  their  destitute  nationals  abroad. 

In  the  matter  of  providing  for  insane  persons,  the  states  of  the  Union 
provide  for  the  care  of  native  and  alien  insane.  The  United  States 
has  no  funds  to  reimburse  foreign  governments  for  the  expense  of 
maintaining  American  insane  persons  abroad,  and  the  states  of  which 
these  persons  were  residents,  when  called  upon,  have  usually  declined 
to  undertake  the  burden.  If  confined  in  an  asylum  abroad,  the  federal 
government  might  be  considered,  under  a  liberal  construction  of  the 
word  "prisoner"  as  entitled  to  use  the  fund  for  the  maintenance  of 
prisoners,  pending  their  return,  for  the  care  of  incarcerated  insane  per- 
sons, pending  their  deportation  to  the  United  States.  Up  to  the  present 
time,  however,  it  is  not  believed  that  the  fund  has  been  so  employed. 

The  practice  of  foreign  governments  in  regard  to  the  maintenance 
and  protection  of  their  destitute  or  insane  citizens  abroad  varies  greatly. 
By  treaty,  they  often  provide  for  the  reciprocal  care  of  their  respective 
pauper  citizens  or  for  their  repatriation  and  the  reimbursement  to  the 
other  country  of  the  expense  of  the  temporary  maintenance  of  indigent 
citizens.  These  treaties  often  enter  into  details  concerning  the  expense 
of  hospital  treatment,  poor  reUef,  accident  insurance,  and  similar  mat- 
ters. By  municipal  legislation,  various  degrees  of  protection  are  ex- 
tended to  their  own  indigent  citizens  abroad  and  to  destitute  aliens  at 
home.  In  the  case  of  their  insane  nationals,  Russia  and  Luxemburg 
appear  to  provide  for  repatriation  and  reimburse  the  foreign  country 
for  the  expense  of  their  maintenance;  Baden  pays  a  per  diem  and  re- 
patriates within  three  months;  Austria  pays  the  expenses,  but  only  if 
the  family  of  the  insane  person  is  in  a  position  to  make  reimbursement; 
Germany,  Belgium  and  Italy  repatriate  their  insane  subjects  but  do 
not  pay  the  expenses  of  their  maintenance  abroad;  whereas  Great 
Britain  and  the  Netherlands  follow  the  example  of  the  United  States 
by  neither  repatriating  nor  paying  expenses.^ 

In  special  emergencies  the  government,  usually  by  Act  of  Congress, 
has  provided  for  the  relief  and  transportation  to  the  United  States 

'  The  practice  of  the  countries  mentioned  is  that  followed  in  their  relations  with 
France.  Weiss,  2nd  ed.,  II,  157;  Tchernoff,  358-360.  It  may  be  that  treaties  with 
other  coiintriea  modify  this  practice. 


412  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

of  destitute  American  citizens  abroad.  For  example,  Congress  appro- 
priated $50,000  in  1897  for  the  relief  of  destitute  Americans  in  Cuba,^ 
to  be  expended  at  the  discretion  of  the  President  "in  the  purchase  and 
furnishing  of  food,  clothing  and  medicines  to  such  citizens,  and  for 
transporting  to  the  United  States  such  of  them  as  so  desire  and  who 
are  without  means  to  transport  themselves."  These  appropriations 
are  made  in  cases  where  considerable  numbers  of  citizens  are  in  want, 
rather  than  on  behalf  of  specific  individuals.  In  the  latter  cases,  the 
Congress  or  the  Department  of  State  very  rarely  extends  financial 
reUef.  On  occasion,  when  an  American  citizen  is  on  trial  in  foreign 
courts,  and  when  the  case  seems  meritorious,  the  Department  has 
authorized  the  expenditure  of  small  sums  for  counsel  to  defend  him.^ 
Similarly,  where  an  outrage  has  been  committed  upon  an  American 
citizen  abroad,  the  Department  has  authorized  the  American  consul 
to  spend  a  small  amount  to  aid  in  finding  the  guilty  offenders.^  Without 
special  instructions  from  the  Department,  a  diplomatic  or  consular 
officer  has  no  authority  to  advance  sums  for  the  relief  of  American 
citizens  abroad.^ 

'  J.  Res.  11,  May  24,  1897,  30  Stat.  L.  220.  See  also  For.  Rel.,  1898,  998-1000. 
For  relief  to  destitute  Americans  in  Panama,  1889,  see  Moore's  Dig.  Ill,  809.  See 
also  J.  Res.  342,  Aug.  12,  1912,  S100,000,  for  transporting  citizens  fleeing  from  threat- 
ened danger  in  Mexico,  37  Stat.  L.  641;  J.  Res.  47,  Aug.  21,  1912,  .$20,000,  for  sub- 
sistence of  fleeing  citizens,  37  Stat.  L.  643;  J.  Res.  10,  Sept.  16,  1913,  $100,000  for 
relief  and  transportation  of  destitute  Americans  in  Mexico,  .38  Stat.  L.  238.  Act  of 
June  23,  1913,  38  Stat.  L.  30,  reimbursing  Mexican  Northwestern  Ry.  for  transporta- 
tion expenses.  J.  Res.  30  and  31,  Aug.  3  and  Aug.  5,  1914,  a'ppropriating  $250,000 
and  $2,500,000,  respectively  for  relief,  protection  and  transportation  of  American 
citizens  in  Eiu-opean  war  area,  38  Stat.  L.  776,  with  a  proviso  for  reimbursement,  if 
financially  able.  See  Dept.  of  State  circulars  on  relief,  August,  1914,  and  executive 
order  of  August  5,  1914,  No.  2012. 

2  E.  g.,  Gendrot's  case,  For.  Rel.,  1899,  271. 

^  Gourd  case  in  Mexico,  October,  1913.  In  the  Waller  case  in  France,  in  1896, 
the  Ambassador  was  instructed  to  furnish  security  for  costs  in  case  Waller  desired  to 
biing  an  action  against  France  or  an  individual  in  the  French  courts.  The  U.  S.  also 
iurnished  Waller  and  his  family  with  subsistence  and  transportation.  H.  Doc.  225, 
5-lth  Cong.,  1st  sess.,  For.  Rel.,  1895,  I,  251  ct  seq.  The  U.  S.  has  no  funds  to  pay 
expenses  of  sending  witncisses  abroad  to  testify  in  proceedings  again.st  assailants  of 
American  citizens.  Balano  case,  1913.  A  bill  was  introduced  in  the  Senate  by 
Sen.  Weeks  to  have  the  U.  S.  refund  expenses  incurred  in  sending  witnesses  to  Mar- 
tinique. 

''  Consninr  RoKulations,  1896,  §  360. 


MEASURE    OF    DAMAGES  413 

The  inability  of  the  government  to  pay  the  ransom  demanded  by 
the  brigands  who  captured  Miss  Ellen  M.  Stone  in  Turkey  in  1901 
induced  the  Department  to  persuade  private  persons  to  raise  the  money 
by  popular  subscription,  under  a  promise  to  endeavor  to  obtain  reim- 
bursement from  a  foreign  government,  if  one  could  be  held  responsi})le, 
and  if  not,  to  urge  Congress  to  make  an  appropriation  reimbursing  the 
subscribers.  As  it  was  decided  that  no  foreign  government  could  be 
held  responsible,  the  President  recommended  a  Congressional  appro- 
priation, but  up  to  the  present  time  the  moral  obligation  of  the  gov- 
ernment to  make  reimbursement  has  not  been  fulfilled.^  In  the  cases 
of  Col.  S^^lge  and  Mr.  Suter  captured  in  Turkey  in  1881  by  brigands, 
and  held  for  ransom,  the  British  government  paid  a  large  ransom  in 
each  case,  but  demanded  reimbursement  from  Turkey  because  of 
Turkey's  neglect  in  taking  proper  steps  to  suppress  brigandage.  In 
papng  these  sums,  the  British  government  decided  not  to  advance 
money  in  the  future  for  the  ransom  of  British  subjects.' 

MEASURE    OF   DAMAGES 

§  172.  Direct  and  Indirect  Damage. 

In  sj^stems  of  private  law,  the  measure  of  damages  is  usually  the 
whole  amount  of  the  loss  which  is  the  natural  result  of  the  injury  in- 
flicted, including,  therefore,  both  damnum  emergens  and  lucrum  cessans. 
International  law,  however,  has  provided  no  fixed  measure  by  which 
damages  may  be  assessed,  but  m  this  respect  has  followed  the  Roman 
and  the  civil  law  in  vesting  wide  discretionary  powers  in  the  judge  or 
arbitrator.  The  examination  of  a  large  number  of  arbitral  decisions 
leads  to  the  conclusion  that  the  state  is  not  charged  with  responsibiHty 
for  indirect  damages  to  the  same  extent  as  private  individuals,  the 
criterion  of  allowance  depending  largely  upon  whether  they  are  proxi- 
mate or  remote,  reasonably  certain  or  speculative  and  consequential. 
The  subject  may  best  be  considered  in  its  relation  to  various  types 
of  cases. 

The  first  great  case  in  which  the  distinction  between  direct  and  in- 

'  Sen.  Doc.  29,  6.3rd  Cong.,  1st  sess.,  President's  message,  March  26,  1908.    See 
Congressional  Record,  62nd  Cong.,  2nd  sess.,  v.  48,  No.  218,  Aug.  23,  1912. 
*72  St.  Pap.  1167,  1175.    See,  however,  supra,  p.  220,  note  1. 


414  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

direct  claims  received  thorough  consideration  was  that  of  the  Alabama 
« arbitration  before  the  Geneva  tribunal,  in  which  Count  Sclopis,  for 
the  arbitrators,  expressed  the  opinion  that  upon  general  principles  of 
international  law  the  indirect  claims,  arising  out  of  (1)  the  loss  due  to 
the  transfer  of  the  American  merchant  marine  to  the  British  flag; 
(2)  the  enhanced  payments  of  insurance;  and  (3)  the  prolongation  of  the 
war  and  the  addition  to  the  cost  of  the  war  and  the  suppression  of 
the  rebellion,  did  not  constitute  good  foundation  for  an  award  of  dam- 
ages between  nations.^  This  award,  including  the  finding  that  "pros- 
pective earnings  cannot  properly  be  made  the  subject  of  compensation, 
inasmuch  as  they  depend  in  their  nature  upon  future  and  uncertain 
contingencies,"  has  been  regarded  as  a  reliable  precedent  by  numerous 
other  arbitral  tribunals,  which  have  disallowed  indirect  claims  based 
upon  loss  of  anticipated  profits,  loss  of  credit,  and  similarly  consequen- 
tial elements  of  loss.^ 

1  Moore's  Arb.  623,  646,  658;  Moore's  Dig.  VI,  999.  See  Ralston,  J.  H.,  Interna- 
tional arbitral  law,  ch.  IX,  and  Moore's  Arb.,  ch.  LXX  in  which  a  good  collection  of 
awards  relating  to  the  question  of  damages  may  be  found.  The  London  Naval  Con- 
ference of  1908-1909  decided  to  lay  down  no  rules  on  the  question  of  direct  and  in- 
direct damages,  but  to  leave  the  whole  question  of  indemnity  to  the  prize  court. 
Renault's  Report  on  Basis  12,  Annexe  118,  Cd.  4555  (Misc.  No.  5),  1909,  338-339. 

2  E.  g.,  Tribunal  between  Great  Britain  and  France  of  July  23, 1873,  art.  IV,  dealing 
with  British  mineral  oil  claims,  63  St.  Pap.  207  et  seq.;  65  ibid.  426;  Moore's  Arb. 
4938;  La  Fontaine,  Pasicrisie  int.,  200.  Commission  "shall  throw  out  claims  con- 
cerning indirect  losses  or  damages,"  etc.,  art.  3  of  protocol  of  arbitration  between 
France  and  Haiti,  Sept.  10,  1913;  Suppl.  to  8  A.  J.  I.  L.  (1914),  145;  Baldwin  (U.  S.) 
V.  Mexico,  Apr.  11,  1839,  Moore's  Arb.  2864  (whether  loss  of  profits  is  a  direct  and 
immediate  injury  held  to  depend  on  local  [Mexican]  law);  Brig  William  (U.  S.)  v. 
Mexico,  Apr.  11,  1839,  ibid.  4226  (prospective  profits  when  vessel  wrongfully  detained 
disallowed);  Mitchell  (U.  S.)  v.  Mexico,  ibid.  4227;  Hammaken  (J,  S.)  v.  Mexico, 
July  4,  1868,  ibid.  3471  (consequential  damages  considered  of  an  uncertain  and  im- 
aginative nature).  See  also  Brooks  (U.  S.)  v.  Mexico,  ibid.  4310;  Alabama  award, 
ibid.  658  (prospective  earnings  deemed  to  depend  upon  future  and  uncertain  con- 
tingencies); Salvador  Commercial  Co.  (U.  S.)  v.  Salvador,  Dec.  19,  1901,  For.  Rel., 
1902,  857,  872  ("probable  future  profits  of  the  undertaking"  disallowed);  Rudlofif 
(U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  182,  198  (loss  of  expected  profits  of  a 
business  venture,  because  unable  to  show  that  profits  would  have  been  made,  dis- 
allowed); De  Caro  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  810  (average  profits 
disallowed,  when  other  causes,  e.  g.,  land  warfare,  might  have  prevented  them); 
Kunhardt  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  63,  69  (loss  of  profits  due  to 
civil  commotions);  Poggioli  (Italy)  v.  Venezuela,  Feb.  17,  1903,  ibid.  847  (disallowed, 
as  indirect  and  uncertain,  a  claim  for  threats  against  claimants'  debtors,  inducing 


MEASURE    OF   DAMAGES  415 

Acts  of  Congress  authorizing  domestic  commissions  to  distribute 
international  awards  have  followed  the  general  rule  excluding  antici- 
pated profits  and  indirect  losses  from  consideration  as  elements  of 
damage.  Thus,  the  Act  of  June  23,  1874  establishing  the  first  Court 
of  Commissioners  of  Alabama  Claims  confined  the  court's  jurisdiction 
to  claims  "directly  resulting"  from  damage  caused  by  the  so-called 
insurgent  cruisers.^  A  similar  jurisdictional  clause  is  contained  in 
the  Act  of  March  2,  1901,  creating  the  Spanish  Treaty  Claims  Commis- 
sion,^ and  in  the  Joint  Resolution  authorizing  the  Court  of  Claims  to 
adjudicate  claims  agamst  the  Chinese  Indenmity  fund.^  Domestic 
commissions  have  reached  the  same  conclusion  ^vithout  specific  direc- 
tion from  Congress.^ 

them  to  refuse  to  pay  their  debts);  Costa  Rica  Packet  (Gt.  Brit.)  v.  Netherlands, 
May  16,  1895,  Moore's  Arb.  4948;  Colombia  v.  The  Cauca  Co.,  190  U.  S.  524,  531. 
Rule  2  of  the  Nicaraguan  Mixed  Claims  Commission  of  1911  provided  that  the 
"Government  is  not  responsible  for  lucro  cesante  (unaccrued  or  uncollected  profits), 
or  indirect  damages  suffered  in  business  as  a  consequence  of  war.  Tchernoff,  op.  cit., 
346-349;  Leval,  op.  cit.,  §§  66  et  seq.  Doctrinal  note  on  Don  Pacifico  case  in  Lapra- 
delle  and  Politis'  Recueil,  I,  595,  in  which  case  consequential  damages  were  collected 
by  Great  Britain.    For.  Rel.,  1872,  244-246. 

'  Act  of  June  23,  1874,  §  11,  18  Stat.  L.  247.  This  clause  was  held  to  exclude  a 
claim  for  loss  of  catch  in  consequence  of  a  vessel  being  driven  away  from  the  scene 
of  whaling  operations.  Gannett  v.  U.  S.,  Moore's  Arb.  4295.  For  other  claims  con- 
sidered as  indirect  injuries  see  Hyneman  v.  U.  S.,  ibid.  4292,  Davis  Rep.  45;  Phillips 
V.  U.  S.,  Davis'  Rep.  56;  Haskins  v.  U.  S.,  Moore's  Arb.  4303  (vessel  ran  on  bar 
and  caught  fire  while  attempting  to  escape  from  the  Shenandoah);  Gannett  v.  U.  S., 
No.  1321,  ibid.  4305.  The  Act  of  June  5,  1882  (22  Stat.  L.  98)  creating  the  second 
court  to  distribute  a  large  surplus  in  the  Treasury  was  given  jurisdiction  over  indirect 
claims  arising  out  of  "the  payment  of  premiums  for  war  risks."  Moore's  Arb.  4653, 
4660. 

2  Section  11,  31  Stat.  L.  879.  "  Award  shall  be  only  for  the  .  .  .  actual  and  direct 
damage.  .  .  .  Remote  and  prospective  damages  shall  not  be  awarded."  See  Brief 
of  U.  S.  in  Tolon,  No.  124,  June  8,  1904  on  "loss  of  prospective  profits  and  earnings." 

3  S.  J.  R.  29,  May  25,  1908,  35  Stat.  L.  577,  "excluding  merely  speculative  claims 
and  elements  of  damage."  See  American  Trading  Co.  v.  Chinese  Indemnity  Fund,  47 
Ct.  CI.  563,  568. 

•*  The  commission  under  the  treaty  with  France  of  July  4,  1831  held  that  captured 
American  "property"  excluded  allowance  for  commissions,  profits,  wages  of  seamen 
and  a  variety  of  contingent  interests.  Moore's  Arb.  4472;  Van  Ness  convention  of 
Feb.  17,  1834,  Act  of  Congress,  June  7,  1836,  Commissioner  Henrj-'s  Final  Report, 
Moore's  Arb.  4542,  4545;  The  Peruvian  indemnity  of  March  17,  1841,  Act  of  Con- 
gress, Aug.  8,  1846,  9  Stat.  L.  80;  Smith  and  Tracy,  Moore's  Arb.  4597;  Macedonian, 


416  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

Speculative/  conjectural,  and  remote  -  damages  have  uniformly 
been  disallowed  by  claims  commissions. 

§  173.  Circumstances  under  which  Claims  for  Indirect  Damages 
Allowed. 
Notwithstanding  numerous  decisions  which  may  be  found  to  the 
effect  that  indirect  losses  do  not  constitute  recoverable  elements  of 
damage,  arbitral  courts  have  nevertheless  attempted  in  many  cases 
to  draw  a  distinction  between  indirect  losses  which  may  fairly  be  con- 
sidered as  certain,  e.  g.,  the  profits  of  an  established  business,  and  in- 
direct losses  which  are  speculative,  imaginative  and  incapable  of  com- 
putation.^    The  allowance  of  the  former  class  of  claims  may  indeed 

ibid.  4603;  Chinese  indemnity  under  treaty  of  Nov.  8,  1858,  Act  of  March  3,  1859, 
11  Stat.  L.  408,  Report  of  Commissioners,  Moore's  Arb.  4628. 

1  Taussig  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3472;  Mora  and  Arango 
(U.  S.)  V.  Spain,  Feb.  12,  1871,  iUd.  3783;  Oliva  (Italy)  v.  Venezuela,  Feb.  13,  1903, 
Ralston,  781. 

2  Grant  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's  Rep.  162  (destruction  of  business); 
Pelletier  (U.  S.)  v.  Haiti,  May  24, 1884,  Moore's  Arb.  1779  (alleged  loss  of  investments 
of  real  estate,  and  claims  in  consequence  of  his  imprisonment);  Dix  (U.  S.)  v.  Vene- 
zuela, Feb.  17,  1903,  Ralston,  7  (sale  of  cattle  at  inadequate  price,  owing  to  revolu- 
tion); Oliva  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  782  (sale  of  business  at  re- 
duced price  to  enable  claimant  to  enter  on  a  concession-contract  with  the  government 
— too  many  elements  may  have  contributed  to  reduce  price);  Valentiner  (Germany) 
t^.  Venezuela,  Feb.  13,  1903,  Ralston,  564  and  Plantagen  Gesellschaft,  ibid.  631  (loss 
of  crop  owing  to  draft  of  claimant's  laborers);  Monnot  (U.  S.)  v.  Venezuela,  Feb.  17, 
1903,  Ralston,  171  (loss  of  business  prospects);  Bischoff  (Germany)  v.  Venezuela, 
Feb.  13,  1903,  ibid.  581  (injury  to  business  resulting  from  unreasonable  detention  of 
property  lawfully  seized);  Larrieu  v.  U.  S.,  No.  468,  Span.  Tr.  CI.  Com.,  Briefs  XXIV, 
138;  Sen.  Doc.  16,  58th  Cong.,  2nd  sess.  (Sec'y  Hay  on  loss  of  traffic  and  business  by 
cable  company,  whose  cable  was  cut  as  an  operation  of  war).  Section  11  of  Act  of 
Mar.  2,  1901,  31  Stat.  L.  879;  Rudloff  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston, 
182,  198  (dictum)  and  PoggioH  (Italy)  v.  Venezuela,  ibid.  847,  870  [loss  of  credit  too 
remote,  indefinite  and  uncertain;  but  see  Irene  Roberts  case  (U.  S.)  v.  Venezuela, 
ibid.  144,  and  May  (U.  S.)  v.  Guatemala,  Feb.  23,  1900,  For.  Rel.,  1900,  648,  654, 
Moore's  Dig.  VI,  731,  where  under  exceptional  circumstances  loss  of  credit  allowed 
as  element  of  damage].  China  commissioners  under  Boxer  indemnity  disallowed 
claims  based  upon  "general  interruption  of  business."  American  Trading  Co.  v. 
Chinese  Indemnity  Fund,  47  Ct.  CI.  563,  568. 

'  Such  a  distinction  was  drawn  by  Umpire  Lieber  in  Rice  (U.  S.)  v.  Mexico,  July  4, 
1868,  Moore's  Arb.  3248  (dictum);  Mora  and  Arango  (U.  S.)  v.  Spain,  Feb.  12,  1871, 
ibid.  3783  (dictum);  Rudloff  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralaton,  182,  198 


WHEN    CLAIMS    FOR   INDIRECT   DAMAGES   ALLOWED  417 

be  reconciled  with  the  disallowance  of  the  latter  on  the  theory  that 
they  are  proximate  results  of  the  original  wrongdoing  and  were  pre- 
sumably or  constructively  within  the  contemplation  of  the  parties. 
An  examination  of  numerous  cases  in  which  such  incidental  losses  have 
been  allowed  as  elements  of  damage  discloses  a  wide  range  of  factors 
and  the  exercise  of  a  wide  discretion  on  the  part  of  arbitrators.  ^  While 
l)robable  future  profits  may  with  some  reason  be  disallowed,  they 
may  properly  be  taken  into  consideration  in  computing  the  value  of 
a  franchise  or  concession  which  has  been  unlawfully  or  arbitrarily 
cancelled. - 

Expenses  incurred  in  the  presentation  and  prosecution  of  a  claim 
have  in  many,  although  not  in  all  cases,  been  allowed  as  recoverable 

(dictum);  Salvador  Commercial  Co.  (U.  S.)  v.  Salvador,  Dec.  19,  1901,  For.  Rel., 

1902,  872.    See  also  Brooks  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  4309. 

'■  Loss  of  employment  arising  out  of  illegal  imprisonment  (Gahagan,  U.  S.,  v.  Mex- 
ico, Apr.  11,  1839,  Moore's  Arb.  3240).  Loss  of  business  resulting  from  wrongful 
arrest  (Canty,  Gt.  Brit.,  v.  U.  S.,  May  8,  1871,  ibid.  3309).  Proximate  and  direct 
consequences  of  wrongful  seizure  of  property,  including  a  reasonable  profit  (Smith, 
U.  S.,  V.  Mexico,  Apr.  11,  1839,  ibid.  3374;  Monnot,  U.  S.,  v.  Venezuela,  Feb.  17,  1903, 
Ralston,  170).  "Full  compensation"  for  the  injur}^  incurred  (Barque  Jones,  U.  S., 
V.  Great  Britain,  Feb.  8,  1853,  ibid.  3049).  Cheek  (U.  S.)  v.  Siam,  July  6,  1897,  ibid. 
1899,  award  5068  (value  of  concession  estimated  by  annual  yield).  Profits  allowed 
in  the  form  of  interest  (Bronner,  U.  S.,  v.  Mexico,  July  4,  1868,  ibid.  3134).  Loss  of 
prospective  output  of  mines,  where  there  was  an  assured  market  (Martini,  Italy,  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  819;  but  see  Duffield,  Umpire,  in  Orinoco  Asphalt 
Co.,  Germany,  t>.  Venezuela,  Feb.  13,  1903,  ibid.  586,  589,  who  only  allowed  interest 
on  the  amount  for  which  the  product  of  the  mine  would  have  sold  during  the  suspen- 
sion of  operations.  C/.  RaLston,  International  arbitral  law,  170).  "Derangement  of 
[claimant's]  plans,  interference  with  his  favorable  prospects,  his  loss  of  credit  and 
business"  (Irene  Roberts,  U.  S.,  v.  Venezuela,  Feb.  17,  1903,  Ralston,  142,  145). 
Two  years'  loss  of  time,  suspension  of  credit,  grave  anxiety  of  mind,  and  profits 
which  would  have  been  earned  had  not  the  Government  prevented  performance  of 
the  contract  (May,  U.  S.,  v.  Guatemala,  Feb.  23,  1900,  For.  Rel.,  1900,  648,  654, 
Moore's  Dig.  VI,  731).  Consequences  of  unlawful  detention  of  vessel,  e.  g.,  repairs, 
wages  of  captain  and  crew  (Orinoco  Asphalt  Co.,  Germany,  v.  Venezuela,  Feb.  13, 

1903,  Ralston,  588).  Loss  and  destruction  of  crops  dm-ing  period  of  compulsory  aban- 
donment of  plantation  (Poggioh,  Italy,  v.  Venezuela,  Feb.  13,  1903,  Ralston,  870; 
Irene  Roberts,  U.  S.,  i'.  Venezuela,  ibid.  145).  Loss  of  prospective  catch  when  fishing 
vessels  were  improperly  ordered  out  of  fishing  grounds  before  end  of  season,  infra, 
p.  421. 

» Salvador  Commercial  Co.  (U.  S.)  v.  Salvador,  Dec.  19,  1901,  For.  Rel,  1902,  872. 
See  also  Navigation  Co.  v.  U.  S.,  148  U.  S.  312. 


418  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

elements  of  damage.^  When  disallowed,  the  refusal  may  be  justified 
on  the  ground  that  as  a  general  rule  of  municipal  law  the  costs  and 
expenses  of  litigation  other  than  the  usual  and  ordinary  court  costs 
are  not  recoverable  in  an  action  for  damages,  and  this  ground  has  in 
certain  cases  been  expressly  advanced.^  It  will  have  been  noted,  how- 
ever, that  most  arbitrators  in  the  allowance  of  costs  and  expenses  have 
been  governed  by  equitable  considerations  rather  than  by  this  tech- 
nical rule  of  law. 

It  will  have  become  apparent  from  the  foregoing  endeavor  to  draw 
a  distinction  between  proximate  and  remote  damages,  that  notwith- 
standing the  general  agreement  as  to  the  principle,  international  tri- 
bunals in  its  application  meet  the  same  difficulty  encountered  by 
municipal  courts  ^  when  attempting  to  draw  a  line  between  injuries 
and  losses  which  are  sufficiently  proximate  and  those  which  are  too 
remote  to  be  the  foundation  of  an  action.  On  the  other  hand,  inter- 
national tribunals  do  not  necessarily  apply  the  rule  of  municipal  courts 

» AUowed  in  Baldwin  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  3235,  3240; 
Augusta  (U.  S.)  v.  Mexico,  ibid.  4347  (including  expenses  of  translation);  Potter,  ibid. 
4227;  Mitchell,  ibid.  4228  and  Comp.  Gen.  des  Asphaltes  (Gt.  Brit.)  v.  Venezuela, 
Feb.  13,  1903,  Ralston,  331  (expenses of  translation);  Stetson  (U.  S.)  v.  Mexico,  July  4, 
1868,  Moore's  Arb.  3131  (cost  of  printing);  Richter  (Germany)  v.  Venezuela,  Feb.  13, 
1903,  Ralston,  575  (cost  of  taking  additional  testimony  as  directed  by  commission) ; 
Louisa  (U.  S.)  V.  Mexico,  Apr.  11,  1839,  Moore's  Arb.  4325  (expenses  incurred  in  ef- 
forts to  obtain  payment);  Poggioli  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  871 
(expenses  incident  to  submission  of  claim  and  to  defense  against  wrongful  charges); 
Rebecca  Adams  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2770  (expenses  incurred 
to  secure  release  of  wrongfully  detained  vessel);  May  (U.  S.)  v.  Guatemala,  Feb.  23, 
1900,  For.  Rel.,  1900,  648,  654,  Moore's  Dig.  VI,  731;  Cheek  (U.  S.)  v.  Siam,  July  6, 
1S97,  Moore's  Arb.  5068;  Costa  Rica  Packet  (Gt.  Brit.)  v.  Netherlands,  May  16,  1895, 
ibid.  4948  (expenses  of  recovery);  Salvador  Commercial  Co.  (U.  S.)  v.  Salvador, 
Dec.  19,  1901,  For.  Rel.,  1902,  872  (attorney's  fees,  and  other  costs);  Act  of  June  23, 
1874  (attorney's  fees). 

2  Valentiner  (Germany)  v.  Venezuela,  Feb.  13, 1903,  Ralston,  562,  565  and  Bischoff, 
ibid.  581.  See  also  Orr  and  Laubenheimer  (U.  S.)  v.  Nicaragua,  Mar.  22,  1900,  For. 
Rel.,  1900,  826  and  Masonic  (U.  S.)  v.  Spain,  Moore's  Arb.  1069  (attorney's  fees  dis- 
allowed); Bronner  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3135  (special  circum- 
stances governed);  Feuilletan  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  406; 
jiritish  mineral  oil  claims  (Gt.  Brit.)  v.  France,  July  23,  1873,  art.  4,  Moore's  Arb. 
4939. 

» 8  Amer.  and  Eng.  Encyc.  of  Law  (2nd  ed.),  563;  Scott  v.  Hunter,  46  Pa.  St.  192; 
Smith  j>.  Telegraph  Co.,  83  Ky.  104. 


MARITIME   TORTS  419 

to  the  effect  that  a  claimant  must,  so  far  as  possible,  be  placed  in  the 
same  condition  as  he  would  have  been  if  he  had  been  allowed  to  pro- 
ceed without  interference.'  While  there  is  a  tendency,  notably  in 
contract  cases,  to  follow  the  rule  of  municipal  courts  that  where  profits 
may  fairly  be  computed  they  may  be  recovered,  it  cannot  be  said 
that  there  has  been  any  close  observance  of  the  rule  on  the  part  of 
international  tribunals. 

§  174.  Punitive  or  Exemplary  Damages. 

Punitive  or  exemplary  damages  have  been  demanded  by  the  United 
States  and  Great  Britain  in  numerous  cases  where  the  injury  to  its 
citizens  consisted  in  a  violent  and  inexcusable  attack  upon  their  lives 
or  property,  where  the  defendant  government  seemed  criminally  de- 
linquent, or  where  the  citizen  occupied  a  position  carrying  national 
dignity,  such  as  a  consul.  Such  outrages  have  been  frequent  in  back- 
ward countries  such  as  China,  Persia  and  Turkey,  the  size  of  the  in- 
demnity demanded  varj'ing  according  to  the  circumstances.^  As 
alread}^  noted,  the  reparation  demanded  may  assume  forms  other  than 
that  of  a  mere  pecuniary  indemnity.  Arbitral  commissions,  while  often 
apparently  taking  into  consideration  the  seriousness  of  the  offense  and 
the  idea  of  punishment  in  fixing  the  amount  of  an  award,  have  gener- 
ally regarded  their  powers  as  limited  to  the  granting  of  compensatory, 
rather  than  exemplary,  damages.  In  some  cases,  they  have  in  dicta 
considered  that  there  was  in  a  given  case  no  justification  for  the  award 
of  punitive  damages,  indicating  thereby  that  they  might,  in  an  appro- 
priate case,  have  awarded  exemplary  damages.'^ 

§  175.  Maritime  Torts. 

In  the  case  of  maritime  torts,  a  long  Hne  of  decisions  of  the  Supreme 
Court  has  established  the  rule  that  the  anticipated  profits  of  a  voyage 

1  U.  S.  V.  Smith,  94  U.  S.  214,  218;  Railroad  Co.  v.  Howard,  13  Howard,  307; 
Howard  v.  Stillwell  Tool  Mfg.  Co.,  139  U.  S.  199;  Anvil  Mining  Co.  v.  Humble,  153 
U.  S.  540. 

''See,  e.  g.,  The  Boxer  indemnity  of  1900,  For.  Rel.,  1901,  Appendix;  Murder  of 
French  and  German  consuls  in  Salonica,  1876,  65  St.  Pap.  949;  Lienchou  riot  case, 
1904,  For.  Rel.,  1906,  pp.  308,  319. 

» Torrey  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  162;  Metzger  (Germany)  v, 
Venezuela,  Feb.  13,  1903,  ibid.  578. 


420  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

terminated  by  wrongful  seizure  or  destruction  of  the  vessel  or  cargo 
are  not  a  proper  element  of  damage,^  but  that  the  measure  of  damage 
is  "the  full  value  of  the  property  injured  or  destroyed,"  ^  to  be  ascer- 
tained by  taking  the  actual  prime  cost  of  the  cargo  and  vessel  with 
interest  thereon,  including  the  insurance  actually  paid  and  such  ex- 
penses as  are  necessarily  sustained.^ 

Under  a  general  rule  of  the  law  of  carriers,  the  proper  measure  of 
damages  is  the  value  of  the  goods  at  the  time  and  place  where  the 
carrier  has  contracted  to  deliver  them.  The  commission  under  arti- 
cle VII  of  the  treaty  of  1794  between  Great  Britain  and  the  United 
States,  which  provided  for  "adequate"  and  "full  and  complete"  com- 
pensation held  ^  that  the  measure  of  damages  for  the  unlawful  seizure 
of  cargo  was  "the  net  value  of  the  cargo  at  its  port  of  destination  at 
such  time  as  the  vessel  would  probably  have  arrived  there,"  in  other 
words,  the  value  of  the  merchandise  plus  the  net  profits  if  the  voyage 

1  Del  Col  V.  Arnold,  3  Dall.  333;  The  Lii>ehj,  1  Gall.  325;  The  Anna  Maria,  2  Wheat. 
327;  The  Amiable  Nancy,  3  Wheat.  560;  La  Amislad  de  Rues,  5  Wheat.  385,  389; 
The  Apolloti,  9  Wheat.  362.  Loss  of  freights  were  regarded  as  prospective  profits  and 
disallowed  in  Canada  (U.  S.)  v.  Brazil,  Mar.  14,  1870,  Moore's  Arb.  1733,  1746;  Ala- 
bama award,  ibid.  658,  and  again,  not  gross  freight,  but  only  net  freight,  admissible. 
Papers  relating  to  treaty  of  Washington,  IV,  43.  Boytie,  Monmouth  and  Hilja  (Gt. 
Brit.)  V.  U.  S.,  May  8,  1871,  Frazer's  opinion,  Hale's  Rep.  252.  Reasonable  earnings 
were  allowed  in  the  Masonic  (U.  S.)  v.  Spain,  award  June  27,  1885,  Moore's  Arb. 
1055,  1066;  Col.  Lloyd  Aspimvall  (U.  S.)  v.  Spain,  award  Nov.  15,  1870,  ibid.  1007, 
1014.  But  see  as  to  freights  allowed,  the  Highlander  and  Jabez  Snoxo  v.  U.  S.,  Act  of 
June  23,  1874,  Moore's  Arb.  4272.  Meaning  of  net  freight  was  defined  in  Winged 
Racer,  ibid.  4260,  as  follows:  from  the  freight  which  a  vessel,  when  destroyed,  was 
engaged  in  earning,  must  be  deducted  the  expenses  which  would  thereafter  have 
been  incurred  if  the  voyage  had  been  successfully  accomplished.  Earnings  of  a 
return  voyage  were  considered  "prospective  earnings."  Colby  v.  U.  S.,  Moore's  Arb. 
4288;  Taylor  v.  U.  S.,  No.  1942,  ibid.  4290. 

2  Del  Col  V.  Arnold,  3  Dall.  333;  The  Apollon,  9  Wheat.  362  (collision);  Smith  v. 
Condrj',  1  Howard,  28  (actual  damage  at  time  and  place  of  injury,  and  not  probable 
profits  at  destination).  See  Telegraph  and  Vaughn,  14  Wall.  258;  Ocean  Qneen,  5 
Blatch.  493;  Rebecca  Adams  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2770  (ac- 
tual value  of  vessel  seized  plus  3  months'  interest). 

'  The  Charming  Betsy,  2  Cranch,  64. 

*  Betsey  (U.  S.)  v.  Great  Britain,  Nov.  19,  1794,  Moore's  Arb.  4205,  4216;  The 
Neptune,  ilrid.  4216,  4217.  See  also  Rutherforth,  Inst,  of  natural  law,  I,  p.  405,  §  5, 
cited  in  the  Betsey  (Moore's  Arb.  4206)  to  the  effect  that  lost  profits  are  a  propei 
element  of  damage. 


MARITIME   TORTS  421 

had  not  been  interrupted.  In  the  majority  of  cases,  however,  the 
prevailing  rule  in  fixing  the  measure  of  damages  for  cargo  unlawfully 
seized  has  been  to  take  the  cost  of  the  goods  at  the  port  of  embarka- 
tion plus  a  reasonable  percentage  for  profit.  This  rule  was  followed 
in  the  case  of  Ferrer  v.  Mexico,  the  award  embracing  the  value  of  the 
merchandise  at  the  place  of  shipment,  the  cost  of  its  transportation 
and  ten  per  cent  profit  on  the  value,  according  to  the  practice  of  prize 
courts.^ 

Several  cases  have  occurred  in  which  fishing  and  sealing  vessels 
have  been  unlawfully  prevented  from  plymg  their  industry  by  being 
wrongfully  ordered  from  the  fishing  grounds.  The  question  as  to 
whether  such  vessels  are  entitled  to  damages  for  loss  of  prospective 
catch  was  fully  discussed  in  the  cases  of  certain  American  sealing  vessels 
ordered  out  of  the  Behring  Sea  by  Russian  cruisers  in  the  early  nineties, 
and  in  the  arguments  of  Great  Britain  and  the  United  States  before 
the  Behring  Sea  Claims  Commission.  The  claims  of  the  American 
vessels  against  Russia  were  submitted  to  the  late  Professor  T.  M.  C. 
Asser  as  arbitrator  and  in  all  but  one  of  the  cases,  he  estimated  the 
damages  by  the  average  catch  of  the  season,  making  an  allowance 
for  the  prospective  catch  of  which  the  vessels  had  been  deprived.^ 

1  Ferrer  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2721.  The  rule  of  the  Britiah 
admiralty  court  in  the  case  of  provision  cargoes  seized  under  the  orders  of  April, 
1795,  was  to  allow  the  invoice  price  plus  10  per  cent.  See  the  Betsey  v.  Great  Britain, 
Nov.  19,  1794,  Moore's  Arb.  4208. 

In  the  case  of  goods  destroyed  by  the  Confederate  cruisers,  adjudicated  by  the 
court  of  commissioners  of  Alabama  claims,  the  measiu-e  of  damages  was  deemed  the 
value  of  the  goods  at  the  time  and  place  of  shipment,  with  charges  and  marine  in- 
surance actually  paid,  with  interest  on  the  aggregate  thus  produced  from  the  time  of 
shipment  to  the  date  of  destruction,  at  6  per  cent.  Winged  Racer  v.  U.  S.,  Act  of 
June  23,  1874,  Moore's  Arb.  4242.  The  court  was  prohibited  from  making  allowance 
far  prospective  profits. 

-  The  Cape  Horn  Pigeon,  the  James  Hamilton  Lewis  and  the  C.  H.  White  were  al- 
1  )wed  substantial  damages  for  prospective  catch.  The  Kate  and  Anna  claim  for 
catch  was  disallowed  because  on  warning  the  captain  had  returned  home  instead  of 
fishing  elsewhere  as  he  might  have  done.  For.  Rel.,  1901,  appendix.  In  four  cases 
before  the  Behring  Sea  Claims  Commission,  it  seems,  awards  were  made  for  prospec- 
tive catch  lost  by  heeding  warning  to  cease  fishing,  Convention  of  Feb.  29,  1892, 
Moore's  Arb.  4764,  94.5.  Congress  in  making  the  appropriation  to  pay  the  Behring 
Sea  awards  (June  15,  1898,  30  Stat.  L.  470)  expressly  decUned  to  admit  any  liability 
"for  any  loss  of  prospective  profits  to  British  vessels  engaged  in  pelagic  fur  sealing." 


422  THE   DIPLOMATIC   PROTECTION   OF    CITIZENS   ABROAD 

Where  vessels  have  been  wrongfully  taken  from  their  regular  course 
and  detained  or  used  for  a  special  purpose,  damages  in  the  nature  of 
demurrage  for  the  detention  or  time  of  employment  have  been  allowed 
against  the  captors  who  had  made  the  unlawful  seizure.^  In  making 
this  allowance  for  time  lost,  the  court  may  properly  take  into  account 
the  nature  of  the  business  in  which  the  vessel  is  engaged.  Thus,  the 
court  of  commissioners  of  Alabama  claims  made  an  allowance  in  lieu 
of  catch  to  the  owners  of  fishing  vessels  taken  from  their  regular  occu- 
pations, and  the  allowance  was  not  considered  in  the  nature  of  pros- 
pective gains. 

§  176.  Ordinary  Contract  and  Tort  Claims. 

No  definite  rule  as  to  the  measure  of  damages  in  cases  of  contract 
or  tort  can  be  asserted.  It  may  be  said,  however,  that  the  loss  of  prob- 
able profits  is  more  generally  compensated  in  cases  of  breach  of  con- 
tract than  in  tort  cases,  because  the  profits  of  a  business  enterprise  are 
presumed  to  have  been  within  the  contemplation  of  the  contracting 
parties.  The  decision  of  the  United  States  Supreme  Court  in  the 
case  of  Howard  v.  Stillwell  Tool  Manufacturing  Co.-  has  on  several 
occasions  been  referred  to  with  approval  by  claims  commissions: 

"It  is  equally  well  settled  that  the  profits  which  would  have  been 
realized  had  the  contract  been  performed,  and  which  have  been  prevented 
by  its  breach,  are  included  in  the  damages  to  be  recovered  in  every  case 
where  such  profits  are  not  open  to  the  objection  of  uncertainty  or  of 
remoteness;  or  where,  from  the  express  or  implied  terms  of  the  contract 
it'^elf,  or  the  special  circumstances  under  which  it  was  made,  it  may  be 
reasonably  presumed  that  they  were  within  the  intent  and  mutual  under- 
standing of  both  parties  at  the  time  it  was  entered  into." 

Prospective  damages  were  allowed  in  the  Halifax  Fisheries  award.  In  the  Costa  Rica 
Packet  (Gt.  Brit.)  v.  Netherlands,  May  16,  1895,  Moore's  Arb.  4948,  it  seems  quite 
probable  that  M.  de  Martens  made  some  allowance  for  prospective  catch.  The  court 
of  commissioners  of  Alabama  claims,  who,  under  the  Act  of  1874  were  prohibited 
from  making  allowances  for  prospective  profits,  disallowed  several  claims  for  loss  of 
prospective  catch  of  fish.  The  Alert,  Moore's  Arb.  4288;  Gannett,  ibid.  4299;  Os- 
bom,  ibid.  4305. 

'  Schooner  Lively,  1  Gall.  315;  Gorier  Marilimo,  1  C.  Rob.  287;  Ships  James  Maury, 
General  Pike  and  others,  Court  of  Alabama  claims,  Act  of  June  23,  1874,  Moore's 
.\rb.  4228;  Baron  de  Castine  v.  U.  S.,  ibid.  4303.  A  similar  rule  has  been  applied  in 
collision  cases.    The  Gazelle,  2  W.  Rob.  279;  Williamson  v.  Barrett,  13  How.  101. 

»  139  U.  S.  199.    See  Martini  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  819,  843. 


PERSONAL    INJURIES  423 

In  cases  of  breaches  of  concession  contracts  the  ordinary  rule  in 
contract  cases  has  been  followed,  namely,  to  allow  the  reasonable  value 
of  the  concession,  based  on  its  expected  profits,  and  not  merely  the 
amount  already  spent  on  the  works.  ^ 

In  estimating  the  value  of  a  business  which  may  have  been  destroyed 
either  through  breach  of  contract  or  by  tortious  act,  it  is  not  unusual 
to  fix  the  value  of  the  good-will  of  the  business  by  taking  into  account 
the  amount  of  average  annual  profits. 

It  is  equally  difficult  to  bring  withm  any  established  rule  the  measure 
of  damages  in  tort  cases,  inasmuch  as  each  case  depends  upon  its  own 
peculiar  facts,  and  inasmuch  as  arbitrators  exercise  a  wide  discretion 
in  determining  the  elements  of  loss  which  may  enter  into  the  allowance 
of  compensation.  The  extent  to  which  prospective  profits  and  indirect 
losses  may  enter  into  consideration  has  been  mentioned. 

§  177.  Personal  Injuries. 

The  commission  passing  upon  alien  claims  against  China  arising 
out  of  the  revolution  of  1911  recommended  that  the  rules  adopted 
by  the  CrowTi  Advocate  of  the  British  government  in  adjudicating 
the  Boxer  claims  be  followed,  namely:  in  case  of  partial  disablement, 
he  obtained,  wherever  possible,  "evidence  as  to  the  extent  to  which 
the  life  of  the  claimant  was,  from  an  insurance  point  of  view,  damaged; 
that  is  to  say,  the  amount  of  extra  premium  which  an  insurance  office 
would  demand  of  the  claimant,  if  otherwise  sound,  applying  for  a 
policy  on  his  life,  the  extent  of  which  they  would  'load'  the  policy. 
The  sum  on  which  [his]  calculation  was  based  being  that  in  which  the 
claimant  would  naturally,  from  his  position  in  life,  take  out  a  policy 
if  about  to  marrj',  [he]  then  allowed  the  capitalized  value  of  these 
extra  premia  as  compensation  for  the  injury  received."  - 

In  cases  of  false  arrest  or  imprisonment,  the  decisions  of  arbitrators 
exhibit  a  wide  range  of  estimates  upon  the  value  of  individual  Uberty 
and  the  indignity  suffered  by  a  wrongful  arrest  and  detention.  Um- 
pire Plumley  in  the  case  of  Topaze,  before  the  British- Venezuelan  com- 

» In  the  case  of  May  (U.  S.)  v.  Guatemala,  Feb.  23,  1900,  For.  Rel.,  1900,  648,  654, 
$41,588  was  allowed  by  the  arbitrator  for  profits  which  would  have  been  earned  had 
not  the  government  prevented  the  performance  of  the  contract. 

*  From  Report  of  Mr.  Wilkinson,  Crown  Advocate. 


424  THE    DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

mission  of  1903,^  after  an  examination  of  some  sixteen  cases,  concluded 
that  $100  per  day  for  unlawful  detention  seemed  the  sum  most  generally 
acceptable  to  arbitral  tribunals.'-  The  awards  for  unjust  arrest  and 
imprisonment,  however,  have  varied  greatly  in  amount,  depending 
upon  the  arbitrariness  of  the  arrest,  the  physical  or  moral  suffering 
connected  with  the  imprisonment,  the  duration  of  the  imprisonment, 
the  official  character  or  station  in  life  of  the  person  arrested  or  detained, 
the  necessary  consequences  of  the  deprivation  of  liberty,  and  other 
special  circumstances.^  Reference  has  already  been  made  ^  to  the 
provision  of  municipal  law  in  most  of  the  countries  of  Western  Europe 
and  in  some  of  the  states  of  the  United  States  indemnifying  from  the 
Treasury  of  the  State  a  person  who  has  been  unjustly  convicted  and 
imprisoned. 

The  measure  of  damages  for  tortious  injuries  resulting  in  death  is 
based  upon  various  factors,  c.  g.,  the  age  and  station  in  life  of  the  de- 
ceased, the  expectation  of  life  of  the  deceased  and  of  his  surviving 
beneficiary,  the  deprivation  of  comforts  and  companionship  to  those 
surviving,  their  degree  of  relationship  to  the  deceased,  shock  to  the 
surviving  members  of  the  family,  and  other  considerations.  The  sub- 
ject received  careful  attention  in  the  cases  of  Di  Caro  and  Brun  against 
Venezuela.^    In  deaths  due  to  the  Boxer  uprisings,  the  Department  of 

•  Topaze  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  329,  331. 

2  See  the  summary  of  cases  collected  in  the  footnote  to  Giacopini  (Italy)  v.  Vene- 
zuela, Feb.  13,  1903,  Ralston,  765,  and  in  Ralston's  International  arbitral  law, 
pp.  177-180.    See  also  Moore's  Arb.,  ch.  LIX. 

'  See  22  Op.  Atty,  Gen.  32,  case  of  T.  J.  Culliton, 

'  Supra,  p.  129. 

^  Di  Caro  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  769,  770;  Brun  (France)  v. 
\enezuela,  Feb.  19,  1902,  Sen.  Doc.  533,  59th  Cong.,  1st  sess.,  5-30.  Besides  the 
cases  referred  to  in  Ralston's  International  arbitral  law,  pp.  176-177,  the  following 
cases  may  be  mentioned:  Maninat  (France)  v.  Venezuela,  Feb.  19,  1902,  Sen.  Doc. 
533,  59th  Cong.,  Ist  sess.,  69-80;  100,000  francs  allowed;  Vexincourt  case — Ger- 
many paid  France  50,000  francs,  for  widow  of  person  shot  on  PYench  soil  by  German 
Kcntrj'  on  German  territory,  Oppenheim,  I,  209;  Pears'  case  v.  Honduras,  1899, 
Moore's  Dig.  VI,  762  (shot  by  sentry  without  justification  and  contrary  to  military 
regulations.  Sentry  tried  and  acquitted.  $10,000  indenuiity  obtained);  Etzcl  case 
V.  China  (.$25,000  Mexican  offered  by  China  for  the  unpremeditated  killing  of  this 
war  correspondent  by  Chinese  soldiers — soldiers  were  also  punished),  For.  Rel.,  1904, 
168  el  seq.;  Amelia  Tejida  de  Covin  v.  U.  S.,  Spanish  Tr.  CI.  Com.,  $20,000  for  tlie 
killing  of  her  son  in  Cuba  by  Spanish  troops;  Cornelia  Alvarez  de  Otazo  and  eight 


PERSONAL    INJURIES  425 

State  awarded  $5,000  each  to  the  relatives  or  estates  of  eighteen  adults, 
it  appearing  that  the  deceased  left  surviving  no  husband,  wife  or  child. 
For  the  killing  of  several  children,  $2,500  each  was  awarded.  The 
commission  had  in  most  cases  allowed  larger  sums,  based  on  expectancy 
of  life  and  other  considerations,  but  the  Department  in  revising  the 
awards,  fixed  the  value  of  an  adult  hfe  at  $5,000  and  that  of  a  child 
j^r  $2,500.  The  British  and  French  governments  appear  to  exact  the 
ir"est  indemnity,  based  upon  expectancy  of  life  and  earning  capacity, 
and  in  flagrant  cases,  add  exemplary  damages.  The  commission  pass- 
ing upon  the  claims  arising  out  of  the  Chinese  revolution  of  1911  recom- 
mended the  adoption  of  the  rules  adopted  by  the  CrowTi  Advocate 
of  the  British  government  in  adjudicating  the  Boxer  claims,  and  pre- 
sented in  his  report:  ^ 

"Claims  for  compensation  for  the  death  of  relatives  fall  naturally 
into  two  classes:  Claims  on  behalf  of  the  children  of  murdered  parents 
and  those  by  other  relatives  for  loss  of  support,  total  or  partial,  actual 
or  reasonably  prospective,  rendered  or  undertaken  by  those  killed. 

"Death  claims  on  behalf  of  children  were  dealt  with  as  follows: 
The  children's  ages  and  the  station  of  life  of  the  parents  l^eing  ascertained, 
a  sum  equivalent  to  the  present  value  of  an  annuity  at  three  per  cent, 
of  whatever  sum  was  necessary  and  fitting  for  the  education  of  each 
child  for  the  number  of  years  to  elapse  before  attaining  the  age  of  tAventy- 
one  was  calculated  and  allowed.  In  addition  to  this,  such  sum  was 
allowed  as  would,  invested  at  compound  interest  at  three  per  cent,  for 
the  same  number  of  years,  provide  for  each  child  at  twenty-one  a  neces- 
sary and  fitting  sum  for  his  advancement  in  life. 

"In  dealing  with  death  claims  on  behalf  of  relatives,  the  age  of  the 
beneficiary  was  ascertained  and  also  the  actual  or  average  annual  sum 
received  from  the  deceased,  the  average  expectation  of  life  of  a  person 
of  the  claimant's  age  being  taken,  a  sum  equal  to  the  present  value  of  an 
annuity  for  such  number  of  years  at  three  per  cent,  of  such  annual  sum 
was  awarded.  In  case  of  prospective  benefit  to  have  been  received  if 
the  murdered  person  had  lived,  the  sum  promised  or  reasonablj'  expected 
tc  l)e  paid  by  the  deceased  was  taken  as  a  basis  of  calculation." 

children,  ibid.,  S30,000  for  the  killing  of  husband  and  father  by  Spanish  guerillas  in 
command  of  an  officer;  Rand  v.  Panama,  $8,000  indemnity  for  killing  of  American 
sailor  by  mob  in  Panama,  For.  Rel.,  1909,  472;  Firing  bj^  Russian  fleet  on  British 
fishing  vessels  in  North  Sea,  1904 — the  Dogger  Bank  incident;  £65,000  paid  by  Russia 
for  killing  of  two  fishermen  and  damage  to  several  boats. 

'  Extract  from  report  of  Mr.  Wilkinson,  Crown  Advocate  of  the  British  govern- 
ment. 


426  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

§  178.  Measure  of  Damages  on  Claims  Arising  out  of  Chinese  Revolu- 
tion of  1911. 

It  may  not  be  without  interest  to  note  the  extent  of  the  losses  for 
which  indemnities  were  allowed  by  the  Claims  Commission  of  the  Dip- 
lomatic Body  in  Peking  passing  upon  the  claims  arising  out  of  the 
Chinese  revolution  in  1911.  Inasmuch  as  China,  a  weak  country, 
was  presumably  given  very  little  opportunity  to  object  to  the  principles 
of  liability  determined  upon,  it  may  be  assumed  that  these  rules  rep- 
resent the  widest  measure  of  damages  assessable  against  a  govern- 
ment. 

In  the  case  of  merchandise  destroyed  or  looted,  the  commission  agreed 
that  the  owner  ought  to  be  entitled  to  compensation  equal  to  the  market 
value  of  the  goods  prevailing  at  the  time  of  loss,  or  in  the  case  of  export 
goods,  to  the  contract  price.  In  the  case  of  damages  caused  to  foreigners 
by  the  destruction,  deterioration  or  loss  of  property,  held  by  them  as 
security,  it  was  understood  that  the  indemnity  payable  on  that  account 
cannot  exceed  the  amount  of  the  debt  for  which  such  security  was 
given.  Indemnity  was  to  be  allowed  for  the  expenses  incurred  by  for- 
eign municipalities  for  the  protection  and  defense  of  their  property. 
In  the  case  of  private  persons  and  firms,  property  losses  indemnified 
included  goods,  personal  effects,  money  and  documents  of  commercial 
value,  salaries  and  other  payments  due  under  contract  to  foreigners 
in  Chinese  government  service  or  institutions  unpaid  owing  to  the 
Revolution;  actual  loss  for  non-fulfillment  or  delay  in  execution,  owing 
to  the  Revolution  and  through  no  fault  of  the  foreign  claimants,  of 
contracts  and  other  engagements  entered  into  by  foreign  firms  and 
individuals  with  the  Chinese  government,  such  loss  including  freight, 
reshipment,  storage,  insurance  and  loss  or  deterioration  of  goods; 
travelling  expenses  of  foreigners  in  Chinese  official  service  to  an  adja- 
cent place  of  safety  and  return  journey,  extra  living  expenses  during 
absence,  and  rent  of  houses;  deposits  of  money  or  investments  in  Chi- 
nese government  banks  or  other  government  departments,  not  re- 
covered; actual  loss  in  industrial  enterprises,  such  as  damage  to  and 
deterioration  of  machinery  and  materials,  resulting  from  unavoidable 
suspension  or  delay  in  working  owing  to  local  revolutionary  disturb- 
ances; rents  not  recoverable  and  rents  paid  in  advance  where  occupa- 


CLAIMS   ARISING   OUT   OF   CHINESE   REVOLUTION   OF    1911  427 

tion  and  use  were  actually  prevented  by  military  operations  or  the 
acts  of  Chinese  soldiers. 

Among  the  elements  of  injury  for  which  compensation  was  in  prin- 
ciple not  allowed  were  1,  the  losses  of  foreign  municipalities  arising 
out  of  (a)  diminution  of  municipal  income;  (b)  the  rents  of  houses 
paid  in  advance  where  occupation  was  prevented;  and  (c)  salaries 
and  wages  of  employees  whose  services  could  not  be  turned  to  account 
owing  to  the  Revolution;  and  2,  the  losses  of  foreign  corporations, 
firms  and  individuals  based  upon  (a)  telegrams  and  similar  charges 
necessitated  by  the  abnormal  state  of  affairs;  (b)  prospective  profits 
not  realized  owing  to  non-fulfillment  or  delay  in  the  execution  of  con- 
tracts or  other  engagements  entered  into  by  foreigners  with  other 
foreigners  or  Chinese  persons;  (c)  extra  living  expenses  incurred  by 
foreigners  owing  to  enforced  absence  from  the  usual  place  of  residence, 
and  similar  expenses  incurred  on  behalf  of  servants  and  employees; 
(d)  expenses  of  removing  property  to  a  place  of  safety  and  replacing 
it;  (e)  expenses  incurred  for  reduction  of  staff,  and  extra  wages  for 
employees;  (f)  freight,  insurance  and  storage  of  stock-in-trade  which 
could  not  be  realized  or  suffered  depreciation  and  expenses  through 
congestion  of  stock;  (g)  interest  on  capital  which  could  not  be  utilized 
owing  to  the  revolutionary  troubles;'  (h)  loss  of  prospective  profit 
owing  to  partial  or  wholesale  deterioration  of  stock-in-trade;  (i)  loss 
owing  to  fluctuation  of  exchange,  appreciation  or  depreciation  of  mar- 
ket prices  and  appreciation  of  freight  and  transport;  (j)  additional 
wages  necessitated  by  the  rise  in  the  price  of  labor.  Other  claims  dis- 
allowed were  those  for  principal  and  interest  on  provincial  loans  unpaid, 
loss  owing  to  inconvertibility  or  depreciation  of  Chinese  govern- 
ment and  provincial  bills  and  paper  money  attributed  to  the  Revolu- 
tion, and  claims  in  respect  to  alleged  illegal  and  unwarranted  imposi- 
tion of  taxes  during  the  disturbances.  Certain  other  claims  which 
were  considered  as  possibly  not  attributable  to  the  Revolution  were 
left  open.- 

>  Cf.  American  Trading  Co.  v.  Chinese  Indenanity  Fund  (Boxer  fund),  47  Ct.  CI. 
563,  568. 

-  Private  correspondence  from  Peking,  China.  Cf.  the  report  of  the  international 
claims  commission  passing  upon  the  Boxer  claims,  Mar.  8,  1901.  For.  Rel,  1901, 
App.,  H.  Doc.  1,  57  Cong.,  lat  sess.  106-108;  Leval,  op.  cit.,  110-118;  paraphrase  in  96 


428  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

INTEREST 

§  179.  Absence  of  any  Settled  Rule  of  Allowance. 

Except  in  the  case  of  torts  based  upon  injuries  to  the  person,  Foreign 
Offices  usually  demand  interest  from  the  date  the  claim  arose  until 
the  date  of  payment,  and  international  tribunals  have  often  allowed 
interest,  notwithstanding  the  absence  of  any  settled  rule  on  the  ques- 
tion.^ Several  commissions,  however,  have  refused  to  allow  interest 
on  the  ground  that  interest  is  a  matter  of  contract  and  that  in  the  ab- 
sence of  a  provision  for  interest  in  the  protocol  under  whose  authority 
the  commission  operates,  interest  cannot  be  allowed  to  one  of  the 
contracting  parties  against  the  other." 

Those  commissions  which  have  allowed  interest  have  proceeded 
either  under  express  authority  of  a  protocol,  or  on  the  theory  that 
"compensation"  includes  interest  for  the  improper  withholding  of 
satisfaction,  either  by  the  failure  to  make  prompt  payment  of  money 
when  due,  or  the  wrongful  detention  of  property. 

Several  commissions  have  refused  interest  on  the  ground  that  the 
claimant  had  been  guilty  of  laches  in  presenting  his  claim  to  the  govern- 
ment, or  in  refusing  to  accept  a  voluntary  offer  of  settlement.^  Numer- 
ous commissions,  especially  in  contract  cases,  have  applied  the  rule 
that  a  government  is  only  chargeable  with  interest  from  the  time  a 
demand  of  payment  has  been  made,  or  the  government  put  upon 
notice  of  the  existence  of  a  claim. ^ 

St.  Pap.  1077-78.  For  the  losses  excluded  from  indemnity  by  the  International 
Claims  Com.  following  the  insurrection  of  1882  in  Egypt,  see  74  St.  Pap.  1091,  1094. 

'  A  valuable  summary  of  awards  on  the  question  of  interest  is  to  be  found  in  Ral- 
ston's  International  arbitral  law,  82-87.  Ralston  presents  a  list  of  commissions  in 
which  interest  has  been  allowed  on  awards,  and  includes  the  rates  of  interest.  See  also 
Moore's  Arb.  4313-4.327,  in  which  the  opinion  of  the  commissioners  under  art.  VII 
of  the  treaty  of  Nov.  19,  1794  is  given.  In  the  Case  of  the  U.  S.  in  claim  of  Alsop  v. 
Chile,  Dec.  1,  1909,  point  IV,  pp.  315-322,  the  opinions  of  publicists  and  the  practice 
of  arbitral  tribunals  in  support  of  the  allowance  of  interest  are  set  forth.  See  also  the 
valuable  opinion  of  Umpire  Plumley  in  the  Motion  for  Interest  claim  (Gt.  Brit.)  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  413-423. 

^  See  Plumley  in  Motion  for  Interest  opinion,  Ralston,  413-423  and  authorities 
there  vAtvxl.  See  also  Chri.stern  (Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  525, 
and  Atty-Gen.  in  Peruvian  Indenmity  awards,  Moore's  Arb.  4595. 

'  Awards  in  Ralston's  International  arbitral  law,  §  1()4,  p.  84. 

^  See  Ralston,  op.  cit.,  §  168,  p.  86,  and  especially  Cervetti  (ItaljO  o.  Venezuela, 


INTEREST  i29 

An  exhaustive  discussion  of  the  liability  of  a  government  to  com- 
pensatory interest  for  the  failure  to  fulfill  a  pecuniary  obligation  was 
undertaken  by  the  Hague  Court  of  Arbitration  in  deciding  the  claim 
of  Russia  against  Turkey  based  upon  the  non-payment  of  interest  on 
a  certain  war  indemnity  exacted  in  the  treaty  of  peace  between  those 
countries  of  Jan.  27-Feb.  8,  1879.  The  tribunal  held  that  even  in 
the  absence  of  an  express  stipulation,  interest  is  due  by  international 
as  by  municipal  law,  for  the  debtor's  improper  withholding  of  a  debt 
from  his  creditor,  but  that  interest  runs  only  from  the  date  when  pay- 
ment is  expressly  demanded.  In  view  of  the  fact,  however,  that  for 
eleven  years  only  the  unpaid  principal  had  been  demanded  by  Russia  in 
various  extensions  of  the  time  of  payment,  the  tribunal  drew  the  legal 
presumption  that  Russia  had  relinquished  all  claim  to  interest.^ 

Interest  has  been  allowed  for  various  periods,  beginning  sometimes 
from  the  date  of  the  original  injury,  and  more  often,  from  the  date  of 
notice  of  the  claim,  unless  otherwise  provided  by  contract.  The  period 
during  which  interest  runs  has  at  times  been  held  to  terminate  at  the 
date  of  payment  of  the  principal  and  sometimes  at  the  date  when  the 
commission  concludes  its  labors,  depending  largely  upon  the  jurisdic- 
tion of  the  commission.-  Conunissions  have  refused  to  compound 
interest.^ 

The  rate  of  interest,  when  allowed,  has  generally  varied  from  three 
to  six  per  cent,  although  on  occasion  eight  and  twelve  per  cent  interest 
has  been  granted.^    There  is  no  settled  rule  as  to  the  rate  of  interest, 

Feb.  13,  1903,  Ralston,  658,  663,  and  Chi-istern  (Germany)  v.  Venezuela,  ibid. 
523. 

»  Russia  V.  Turkey,  July  22/August  4,  1910,  award  Nov.  11,  1912;  7  A.  J.  I.  L.  178, 
188  et  seq.  200.  See  also  Robert  Ruze  in  15  R.  D.  I.,  2nd  ser.  (1913),  351-371.  Tur- 
key's contention  that  states  differ  from  individuals  as  debtors,  in  that  they  are  not 
liable  to  pay  interest  on  unfulfilled  obligations,  was  expressly  denied.  By  granting 
an  extension  of  time  in  the  payment  of  the  debt,  Russia  was  held  to  have  released  its 
claim  for  accrued  interest.  See  also  Law  Mag.  and  Rev.,  Aug.,  1914,  464.  The 
decision  appears  to  have  followed  the  principles  of  French  private  law. 

=  Ralston,  op.  ciL,  §§  169-171. 

^  Ralston,  op.  cit.,  §  166. 

''  Eight  per  cent  by  the  Spanish-American  commission  of  1871,  Moore's  Arb.  3763; 
12  per  cent  by  the  Chinese  indemnity  domestic  commission  under  treaty  of  1858,  ibid. 
4629.  The  Boxer  Claims  Com.  of  1900  (For.  Rel.,  1901,  Appendix,  107),  allowed  5 
per  cent  on  personal,  and  7  per  cent  on  commercial  claims. 


430  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

although   numerous   commissions   have   adopted   the   rate   prevailing 
in  the  place  where  and  at  the  time  when  the  claim  arose. 

EXTRATERRITORIAL   PROTECTION  ^ 

§  180.  Protection  Amounting  to  Jurisdiction. 

The  widest  range  of  the  protective  function  is  to  be  found  in  the 
exercise  of  extraterritorial  jurisdiction  by  the  countries  of  European 
civilization,  through  their  diplomatic  and  consular  representatives, 
in  certain  countries  of  the  Orient."  The  exercise  of  this  jurisdiction 
involves  in  large  degree  a  withdrawal  of  the  nationals  of  the  countries 
enjoying  extraterritorial  rights  from  the  local  jurisdiction  of  the  au- 
thorities of  the  country  of  residence,  and  a  subjection  of  these  foreign- 
ers to  the  jurisdiction  of  their  own  diplomatic  and  consular  officers  in 
certain  classes  of  cases  and  for  certain  purposes.  These  exceptional 
privileges  of  foreigners  in  certain  Oriental  countries  are  based  either 
on  custom  and  treaty,  as  in  Turkey,  or  on  treaty  alone,  as  in  China. 
The  reason  for  their  exemption  from  the  local  jurisdiction  is  to  be  found 
in  the  diversity  of  law,  custom  and  social  habits  of  the  people  of  Euro- 
pean civilization  for  whose  benefit  the  extraterritorial  privileges  were 
secured.  For  many  purposes,  these  foreigners  are  subject  to  their 
national  law,^  administered  by  their  own  consuls  or  diplomatic 
officers. 

'  The  technical  distinction  between  exterritoriality  and  extraterritoriality  is  dis- 
cussed by  Piggott  in  his  work  on  Exterritoriality  (new  ed.),  London,  1907,  p.  3,  note. 

2  Moore's  Dig.  II,  §§  259-290;  H.  Doc.  320,  59th  Cong.,  2nd  sess.,  190-247;  Hinck- 
ley, F.  E.,  American  consular  jurisdiction  in  the  Orient,  Washington,  1900;  Brown, 
Philip  M.,  Foreigners  in  Turkey;  their  juridical  status,  Princeton,  1914;  Hall,  W.  E., 
I'oreign  powers  and  jurisdiction  of  the  British  Crown,  Oxford,  1894,  p.  132  et  seq.; 
Piggott,  F.,  Exterritoriality,  new  ed.,  London,  1907;  Jenkyns,  Henry,  British  rule  and 
jurisdiction  beyond  the  seas,  Oxford,  1902,  p.  150  et  seq.;  Arminjon,  P.,  Strangers  et 
proteges  dans  I'Empire  Ottoman,  Paris,  1903;  Lippmann,  K.,  Die  Konsularjuris- 
dikt'on  im  Orient,  Leipzig,  1898;  Pelissi6  du  Rausas,  G.,  Le  regime  des  capitulations 
dans  I'Empire  Ottoman,  2nd  ed.,  Paris,  1910,  introduction  to  v.  1;  Key,  F.,  La 
protection  diplomatique  et  consulaire  dans  les  Echelles  du  Levant,  Paris,  1899. 

'  See  Act  of  August  11,  1848,  9  Stat.  L.  276  and  particularly  R.  S.,  §§  4083-4130; 
see  also  Act  of  June  30,  1906,  34  Stat.  L.  814,  creating  U.  S.  court  for  China;  Hinck- 
ley, p.  41  and  Appendix  I-III;  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  216-246,  contain? 
treaties,  statutes  and  regulations  relating  to  extraterritorial  jurisdiction  of  the  United 
States. 


SOURCES   OF   EXTRATERRITORIAL  RIGHTS  431 

§  181.  Sources  of  Extraterritorial  Rights. 

The  extent  of  the  extraterritorial  jurisdiction  of  the  United  States 
in  a  given  country  is  to  be  found  in  the  treaty  conferring  extraterri- 
toriality and  in  the  statutes  and  regulations  of  the  United  States  pro- 
viding for  the  exercise  of  this  jurisdiction  by  American  diplomatic 
and  consular  officers.^  Such  extraterritorial  jurisdiction  is  exercised 
in  conformity  (1)  with  the  laws  of  the  United  States,  and,  if  they  are 
unsuitable  or  deficient,  (2)  ^ath  "the  common  law,  and  the  law  of 
equity  and  admiralty,"  and  if  all  these  do  not  furnish  appropriate  and 
sufficient  remedies,  (3)  with  "decrees  and  regulations"  having  "the 
force  of  law,"  which  the  '"ministers"  may  make  to  "supply  such  de- 
fects and  deficiencies."  - 

Besides  the  consular  jurisdiction  exercised  over  nationals,  a  wide 
degree  of  protection  is  extended  by  consuls  to  the  subjects  of  non-treaty 
powers  and  even  to  natives  in  the  employ  of  foreigners.  This  protec- 
tion of  non-nationals,  which  differs  from  jurisdiction,  will  be  discussed 
hereafter.'^ 

The  so-called  extraterritorial  rights,  resting  in  their  origin  upon 
treat}',  have  in  the  course  of  time,  particularly  in  Turkey,  Morocco 
and  other  countries,  gathered  around  themselves  by  custom  an  accre- 
tion of  further  encroachments  upon  the  local  jurisdiction,  so  as  to  con- 
stitute in  some  countries  a  veritable  imperium  in  imperio.  Apart 
from  all  consideration  of  the  justice  or  desirability  of  the  step,  one 
can  understand  and  s^TQpathize  with  the  attempt  of  the  Turkish  gov- 
ernment to  rid  itself — as  it  undertook  to  do  by  notification  to  the 
Powers  shortly  after  the  outbreak  of  the  European  War  of  1914 — 
of  the  serious  encroachments  upon  national  sovereignty  imposed  by 
the  Capitulations.*  The  contention  of  the  United  States,  to  the  effect 
that  a  treaty  cannot  be  abrogated  by  a  unilateral  act,  in  the  absence 
of  specific  stipulation,  will  serve  to  keep  the  matter  in  abeyance  for 

*  The  federal  government,  as  a  matter  of  constitutional  law,  has  the  right  to  de- 
termine when  and  under  what  circumstances  the  rights  of  extraterritoriality  will  be 
exercised, 

» R.  S.,  §  4086;  7  Op.  Atty.  Geu.  503;  Moore's  Dig.  II,  614. 

^  Infra,  p.  467. 

''  See  an  interesting  note  in  40  Law  Mag.  and  Rev.  (November,  1914),  84,  and  a  dis- 
cussion by  Brown,  Ph.  M.,  Foreigners  in  Turkey,  112-118. 


432  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

the  present.     The  success  of  Turkey's  attempt  will  probably  depend 
largely  upon  the  outcome  of  the  European  War. 

§  182.  Origin  and  Development  of  the  System. 

The  purpose  of  the  extraterritorial  privileges  was  quite  different 
in  origin  from  their  present  raison  d^etre.  As  early  as  the  twelfth  cen- 
tury various  Itahan  cities  had  obtained  from  the  Greek  Christian 
rulers  at  Constantinople  and  later  from  their  Mohammedan  conquerors 
numerous  charters  or  capitulations  for  the  protection  of  their  com- 
merce, and  exemption  for  their  merchants  in  the  Levant  from  the  local 
jurisdiction.^  In  the  development  of  this  system  after  the  Moslem 
conquest,  the  exemption  was  based  on  a  presumed  inferiority  of  the 
western  merchants  as  unfit  to  share  in  the  privileges  of  Moslem  law, 
so  largely  religious  in  character,  resembling,  in  this  respect,  the  grant 
of  the  jus  gentium  to  foreigners  at  Rome,  because  they  were  considered 
unfit  to  share  in  the  privileges  of  the  jus  civile.  The  spread  of  the 
system,  however,  is  founded  upon  the  desire  of  countries  of  the  western 
world  to  protect  their  nationals  from  the  operation  of  unfit  or  unequal 
laws  and  from  the  danger  of  corrupt  and  ignorant  local  courts.-  The 
exercise  of  extraterritoriality  found  an  early  prototype  in  the  quasi- 
judicial  functions  which  foreign  consuls  had  been  accustomed  to  exer- 
cise in  European  ports  as  between  merchants  of  their  own  country. 

Beginning  with  the  capitulations  in  favor  of  the  Italian  republics, 
the  system  extended  gradually  to  the  nations  of  modern  Europe. 
The  Turkish  capitulations  in  favor  of  France  from  1535  on  became  the 
basis  for  the  treaty  rights  of  other  powers.^  The  extraterritorial  rights 
of  the  United  States  in  Turkey  are  based  principally  on  the  treaty  of 
1830.^  As  early  as  1787,  however,  the  United  States  concluded  a  treaty 
with  Morocco  securing  the  privileges  of  extraterritoriality,  followed 
in  1797,  1805  and  1815,  by  treaties  with  Tunis,  Tripoli  and  Algiers 

1  Hinckley,  2;  Pelissi^  du  Rausas,  v.  I,  introduction. 

2  Hall,  1.35. 

*  Hinckley,  7;  Brown,  33  et  seq. 

*  Philip  M.  Brown  has  recently  written  an  interesting  work  on  the  legal  status  of 
foreigners  in  Turkey  (Princeton,  1914)  in  which  the  much  disputed  question  of  the 
rights  of  American  citizens  under  art.  IV  of  the  treaty  of  1830  is  discussed.  See 
pp.  76-80. 


1 


ORIGIN   AND    DEVELOPMENT   OF   THE    SYSTEM  433 

respectively.  In  1844  the  system  was  extended  by  treaty  to  China, 
and  in  1857-1858  to  Japan,  in  which  country  it  has  since  been  aban- 
doned.^ The  United  States  now  exercises  extraterritorial  jurisdiction  in 
Turkey,  Bulgaria,  China,  Persia,  Siam  and  Maskat.  Owing  to  the  many 
changes  in  the  international  status  of  the  oriental  countries  with  which 
the  United  States  has  negotiated  treaties  of  extraterritoriality,  extra- 
territorial jurisdiction  is  now  either  suspended  or  greatly  modified 
in  its  exercise  in  Zanzibar,  Borneo,  Tonga,  Tripoli  and  Morocco  and 
has  been  entirely  relinquished  in  Algiers,  Japan,  Korea,  Madagascar, 
Roumania,  Samoa,  Servia  and  Tunis.- 

It  is  obviously  beyond  the  scope  of  this  work  to  analyze  the  provi- 
sions of  the  treaties  and  statutes  to  determine  in  each  particular  country 
the  extent  of  extraterritorial  jurisdiction.^  The  extraterritorial  privi- 
leges usually  include  an  exemption  from  the  jurisdiction  of  the  courts 
of  the  oriental  state;  inviolability  of  the  domicil;  freedom  from  arrest 
by  native  officials,  except  when  in  the  act  of  committing  a  flagrant 
crime;  if  arrested,  the  right  of  surrender  to  the  consul  for  trial  and 
punishment;  criminal  or  civil  trial  in  consular  or  national  courts  of 
the  accused  or  defendant;  general  jurisdiction  of  the  foreign  consul 
over  his  nationals,  Avith  right  to  require  the  assistance  of  the  local  au- 
thorities; and  notification  of  the  consul  in  case  of  the  arrest  of  native 
employees  of  an  American  citizen.'* 

Hall  mentions  certain  privileges  which  Great  Britain  and  a  few  other 
favored  nations  possess  to  prevent  an  oppressive  exercise  of  power  on 
the  part  of  the  local  authorities.  Thus,  in  the  territories  to  which 
the  Capitulations  extend,  the  local  police  are  forbidden  to  enter  by 
force  the  house  of  a  British  subject  without  notice  to  the  ambassador 
or  consul;  or  where  a  criminal  is  arrested  flagrante  delicto,  notice  of 
the  arrest  must  be  given  to  the  consul  within  twenty-four  hours.     In 

1  By  the  treaty  of  Nov.  22,  1894;  Hinckley,  183. 

2  Hinckley,  40;  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  214-222,  and  citations  to  Hinck- 
ley; Moore's  Dig.  II,  §§  271,  282,  283,  284. 

'  This  has  been  done  by  Hinckley  and  Brown  for  the  United  States  in  particular, 
and  for  various  European  countries  by  the  authors  cited  in  note  2,  p.  430.  As  to 
extraterritorial  jurisdiction  in  China,  see  especially  Koo,  V.  K.  W.,  Status  of  aUens 
in  China,  New  York,  1912,  ch.  IX-XII;  and  in  Turkey,  Brown,  op.  cit.,  ch.  Ill  and  IV. 

*  Hinckley,  2  and  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  202,  quoting  Atty.  Gen. 
Gushing  in  7  Op.  Atty.  Gen.  565,  569  and  Hall. 


434  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

Persia,  formal  authorization  from  the  minister  or  consul  is  required. 
Ships  and  their  boats  are  assimilated  to  houses.^  A  certain  degree  of 
protection  is  thus  extended  to  things  and  places  as  well  as  to  persons. 

This  brief  study  of  extraterritorial  protection  emphasizes  the  fact 
that  the  degree  of  diplomatic  protection  exercised  in  a  given  country 
is  in  inverse  ratio  to  the  degree  of  local  security  enjoyed  by  foreigners 
under  the  municipal  law  and  institutions  of  the  country  of  residence. 

>  HaU,  143;  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  209;  Brook  in  30  Law  Mag.  and 
Rev.  170. 


CHAPTER  VI 

MEANS  OF  PROTECTION 

§  183.  Agencies  of  Protection. 

International  law  has  created  various  agencies  which  serve  states 
to  fulfill  their  function  of  protecting  citizens  abroad.  The  diplomatic 
and  consular  service,  acting  as  the  instrument  of  the  Foreign  Office, 
is  the  customary  channel  through  which  the  rights  of  nationals  are 
safeguarded  and  protected.  The  rights  of  aliens — or  citizens  abroad — 
are  defined  in  the  municipal  law  of  each  country,  subject  to  the  limita- 
tions imposed  by  the  obligations  of  international  law  and  of  treaties. 
Treaties,  therefore,  which  prescribe  the  reciprocal  rights  of  nationals 
of  one  of  the  contracting  parties  in  the  country  of  the  other,  and  of  con- 
suls of  each  country  acting  in  special  matters  on  behalf  of  their  nationals, 
may  appropriately  be  considered  as  a  means  of  protection.  The  ex- 
ercise of  consular  jurisdiction,  with  the  wide  range  of  powers  involved 
in  the  protection  of  citizens  as  well  as  non-nationals  in  countries  where 
extraterritorial  privileges  are  enjoyed,  and  the  exercise  of  the  right  of 
asylum  in  legations  and  public  vessels — a  practice  universally  dis- 
couraged by  the  United  States  as  to  non-nationals  but  still  granted 
occasionally  by  many  countries  in  backward  states  and  (by  inheritance 
and  tradition,  rather  than  justice)  in  the  republics  of  Latin-America — 
may  be  deemed  institutions  of  international  law  designed  to  afford 
adequate  protection  to  citizens  and  others  requiring  diplomatic  assist- 
ance. Delegated  protection,  by  which  the  consuls  and  diplomatic 
officers  of  one  country  assume,  by  request,  the  protection  of  the  interests 
of  the  citizens  of  another  country,  and  joint  protection,  are  other 
methods  of  protecting  citizens  in  certain  emergencies. 

§  184.  Consular  Service. 
One  of  the  most  important  agencies  for  the  protection  of  citizens 

435 


436  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

abroad  is  the  consular  service.^  While  the  consul  has  no  diplomatic 
or  representative  character,  and  his  political  functions  are  limited, 
the  considerable  number  of  consuls  and  their  location  in  the  more  im- 
portant commercial  centers  results  in  a  closer  relation  between  a  consul 
and  his  fellow-citizens  abroad  than  is  possible  for  a  diplomatic  officer. 
Treaties  and  custom,  therefore,  confide  to  the  consul  a  wide  range  of 
protective  functions,  short  of  the  presentation  of  diplomatic  claims 
or  the  making  of  representations  to  the  central  government. 

Consular  conventions  usually  provide  that  consuls  shall  have  the 
right  to  address  the  local  authorities  in  their  districts  in  remonstrance 
against  infractions  of  international  law  or  of  the  treaties  existing  be- 
tween the  two  countries,  and  against  whatever  abuse  may  be  com- 
plained of  by  their  countrymen.  The  consul's  activity  is  usually  con- 
fined to  individual  cases,  the  larger  questions  connected  with  a  general 
violation  of  treaties  or  of  international  law  being  handled  by  the  lega- 
tion with  the  central  government.  The  local  authorities  are  usually 
required  by  treaty  to  give  the  consul  information  concerning  his  country- 
men, to  notify  him  of  deaths,  to  permit  him  to  intervene  in  the  care  of 
a  deceased  national's  estate  and,  under  certain  circumstances,  to  appoint 
him  administrator.^ 

The  Itahan  government,  one  of  the  most  watchful  of  all  govern- 
ments in  the  protection  of  its  subjects  abroad,  has  within  recent  years 
established  legal  bureaus  in  connection  with  its  principal  consular 
offices  in  the  United  States,  with  a  view  to  conserving  the  legal  rights 
of  its  many  subjects  in  this  country,  and  in  case  of  their  death,  the 
rights  of  their  Italian  heirs  and  successors.  An  excellent  system  en- 
al)les  consuls  to  learn  quickly  of  the  difficulties  of  their  fellow-citizens 
in  any  part  of  the  country,  and  the  legal  bureaus  enable  these  persons 
to  obtain,  under  the  supervision  of  their  government,  the  fullest  meas- 
ure of  rights  clue  to  them  by  treaty  or  municipal  law.^  The  principle 
of  such  legal  protection  is  followed  by  consulates  of  other  nations  in 
this  and  other  countries,  but  the  system  apparently  does  not  com- 

'  Tchernoff,  363  et  seq.;  Moore's  Dig.  V,  §  719.    See  also  Testa,  Luigi,  Le  voci  del 
servizio  diplomatico-consolare  italiano  e  straniero,  3rd  ed.,  Rome,  1912.    735  p. 
-'  Supra,  §  166. 
3  See  the  long  editorial  by  C.  C.  Hyde  in  5  A.  J.  I.  L.  (1911),  1055-1058. 


CONSULAR   SERVICE  437 

pare  in  efficiency  with  the  Italian.  Its  adoption  by  Italy  has  re- 
sulted in  much  more  certainty  that  Italian  subjects  will  not  be  the  vic- 
tims of  injustice,  private  and  public. 

Nations  subject  to  a  large  emigration,  like  Italy,  sometimes  provide 
various  agencies,  under  the  supervision  of  the  consul  or  other  person, 
for  the  care  of  their  emigrant  nationals  in  the  principal  foreign  ports 
of  immigration.  Their  main  purpose  is  to  prevent  the  immigrants 
from  being  victimized  by  designing  imposters  and  pseudo-employers.^ 

The  exercise  of  consular  jurisdiction  over  national  merchant  vessels 
and  in  countries  in  which  his  countr^inen  enjoy  extraterritorial  priv- 
ileges -  may  be  considered  incidental  to  the  consul's  protective  func- 
tions. 

One  of  the  consul's  most  usual  duties  is  to  address  the  local  authorities 
on  behalf  of  his  fellow-citizens  accused  of  crime  or  imprisoned,  to 
support  these  persons  in  their  right  to  due  process  of  law,  to  secure 
all  necessary  information  concerning  their  welfare,  and  to  visit  them, 
if  proper.  Being  often  nearest  to  the  scene  of  action,  the  protective 
function  in  first  mstance  is  frequently  exercised  by  the  consul  rather 
than  by  the  diplomatic  representative.  Only  if  prevented  from  ful- 
filling his  duties  of  protection,  in  cases  where  communication  with  the 
central  government  is  required,  need  he  address  the  diplomatic  rep- 
resentative accredited  to  the  country,  although,  as  a  matter  of  fact, 
in  every  case  of  more  than  trifling  importance  the  consular  officer 
either  directly  informs  the  legation  of  the  facts  or  forwards  to  the  lega- 
tion a  copy  of  dispatches  sent  to  the  Department  of  State. 

The  printed  instructions  to  diplomatic  agents  contain  the  following 
provision : 

"In  countries  with  which  the  United  States  have  treaty  stipulations 
providing  for  assistance  from  the  local  authorities,  consular  officers  are 
instructed  that  it  is  undesirable  to  invoke  such  interposition  unless  it  is 
necessary  to  do  so.  In  cases  of  arrest  and  imprisonment,  they  will  see, 
if  possible,  that  both  the  place  of  confinement  and  the  treatment  of 
the  prisoners  are  such  as  would  be  regarded  in  the  United  States  as 

iTchernoff,  358.  Protection  of  Italian  immigrants,  For.  Rel,  1894,  367-369. 
Abolition  of  Italian  bureaus  at  Ellis  Island,  For  Rel.,  1898,  406-409.  (The  order  waa 
suspended  on  the  protest  of  the  Italian  ambassador.) 

*  Moore's  Dig.  II,  §§  287-289. 


438  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

proper  and  humane.  If  a  request  for  assistance  is  refused,  the  consular 
officer  should  claim  all  the  rights  conferred  upon  him  by  treaty  or  con- 
vention, and  communicate  at  once  with  the  diplomatic  representative 
in  the  country,  if  there  be  one,  and  with  the  Department  of  State.  When 
such  requests  are  made  in  accordance  with  long-established  usage, 
he  should,  when  they  are  refused,  make  suitable  representations  to  the 
proper  local  authority,  and  likewise  advise  the  legation  and  the  Depart- 
ment." 1 

It  has  not  infrequently  happened  that  consuls  in  their  character  as 
guardians  of  the  interests  of  their  fellow-citizens  in  time  of  civil  com- 
motion have  requested  the  Department  of  State  directly  or  through 
the  legation  to  send  a  warship  to  the  scene  of  trouble. 

Treaties  sometimes  provide  that  in  the  absence  of  a  diplomatic  agent 
consuls  may  address  the  central  government  of  the  country  in  which  the 
consulate  is  located. 

Consuls  as  commercial  representatives  of  their  respective  countries 
are  instructed  to  foster  the  commercial  interests  of  their  fellow-citizens, 
and  in  commercial  matters  they  are  constituted  sources  of  information. 

§  185.  Treaties. 

Possibly  the  most  customary  instrument  for  defining  the  rights  of 
citizens  abroad  and  assuring  protection  for  their  interests  is  a  treaty 
between  the  respective  countries.  Such  treaties  are  usually  confined 
to  the  definition  of  commercial  rights,  but  often  assume  a  wider  range. 
Municipal  legislation,  by  which  rights  are  extended  to  aliens  upon  a 
basis  of  reciprocity,  is  also  a  customary  means  for  obtaining  the  grant 
of  reciprocal  rights  to  citizens  abroad.  Finally,  international  conven- 
tions between  several  states  having  in  view  an  enhancement  of  the 
rights  or  an  amelioration  of  the  condition  of  aliens,  may  well  be  con- 
sidered a  mode  of  protection.  Thus,  the  Geneva  and  some  of  the  Hague 
conventions,  the  international  treaties  dealing  with  the  condition  of 
laborers,  workmen's  compensation,  poor  relief,  the  protection  of  women 
and  children  against  overwork  and  against  the  white-slave  traffic, 
and  similar  conventions  may  be  regarded  as  cooperative  measures 
for  the  mutual  protection  of  citizens  abroad. 

'  Printed  Personal  Instructions  to  Diplomatic  Agents,  1885,  §  150,  p.  32,  reprinted 
in  Moore's  Dig.  V,  101. 


AMICABLE    METHODS  439 

§  186.  Methods  of  Redress  of  Injuries. 

When  an  injury  has  been  inflicted  upon  an  alien  in  such  manner  as 
to  involve  the  international  responsibility  of  the  state,  an  international 
case  has  arisen  to  be  settled  by  the  means  recognized  as  legal  for  the 
settlement  of  any  other  international  difference.  The  modes  of  redress 
may  be  either  amicable  or  non-amicable,  and  may  range  from  diplo- 
matic negotiations,  the  use  of  good  offices,  mediation,  arbitration, 
suspension  of  diplomatic  relations,  a  display  of  force,  retorsion,  reprisals, 
or  armed  intervention,  to  war  in  the  full  sense  of  the  word. 

The  object  to  be  attained  by  resort  to  these  methods  of  providing 
a  sanction  for  diplomatic  protection  is  usually  a  pecuniary  indenmity 
and  a  guarantee  against  the  recurrence  of  the  international  delin- 
quency; in  other  words,  redress  for  the  present  and  security  for  the 
future.  Having  become  a  matter  for  international  adjustment,  the 
person  injured  has  no  control  over  the  measure  of  redress  to  be  demanded 
or  the  means  to  be  employed,  matters  entirely  within  the  discretion 
and  control  of  the  government.  Thus  it  happens  that  the  interna- 
tional offense  growing  out  of  an  injury  to  a  citizen  may  find  its  solution 
in  the  annexation  of  territory,  as  occurred  in  China  in  1897  when  Ger- 
man}^ secured  Kiauchau  on  lease  as  a  consequence  of  the  assassination 
of  some  German  missionaries,  and  as  occurred  in  1913  in  Tripoli,  ceded 
to  Italy  by  Turkey  as  the  outcome  of  a  war  begun  ostensibly,  if  not 
actually,  because  of  the  non-payment  of  claims. 

AMICABLE   METHODS 

§  187.  Diplomacy. 

Upon  an  injury  to  an  alien,  in  a  case  where  international  responsi- 
bility is  alleged  by  his  national  government,  diplomatic  negotiation 
is  the  first  method  used  to  secure  redress.  The  complaining  state, 
through  its  diplomatic  representative,  brings  the  claim  to  the  attention 
of  the  defendant  government,  which  may  interpose  defenses  or  suggest 
some  other  method  of  settlement,  such  as  mediation  or  arbitration.  The 
complaining  government  may  conduct  the  negotiations  itself  or  may 
support  the  claimant  in  his  endeavor  to  arrive  at  a  direct  settlement 
with  the  defendant  government.  It  may  fairly  be  said  that  the  major- 
ity of  international  pecuniary  claims  arising  out  of  private  injuries  are 


440  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

settled  by  diplomatic  negotiation.  In  this  connection,  it  is  to  be  noted 
that  the  methods  of  diplomacy  are  in  international  law  as  truly  legal 
a  form  of  procedure  as  any  of  the  forms  of  judicial  procedure  known 
to  municipal  law.  When  negotiation  fails  the  parties  may  resort  to 
the  good  offices  or  mediation  of  a  friendly  power,  or  to  arbitration. 

i  188.  Good  Offices. 

The  term  "good  offices"  in  diplomacy  is  employed  in  two  senses. 
In  the  first,  it  denotes  informal  representations  corresponding  to  the 
French  offideux,  and  means  ''the  unofficial  advocacy  of  interests  which 
the  agent  may  properly  represent,  but  which  it  may  not  be  convenient 
to  present  and  discuss  on  a  full  diplomatic  footing."  ^  It  signifies  the 
unofficial,  personal  and  friendly  efforts  of  a  diplomatic  agent,  as  dis- 
tinguished from  the  official,  formal  and  governmental  support  of  a 
diplomatic  claim.  The  line  of  demarcation  between  unofficial  good 
offices  and  official  interposition  is  not  always  easy  to  draw,  inasmuch 
as  in  either  case  the  government  may  authorize  or  direct  a  diplomatic 
representative  to  extend  his  assistance.  In  both  cases,  the  diplomatic 
officer  proceeds  through  the  medium  of  the  Minister  of  Foreign  Affairs 
of  the  country  to  which  he  is  accredited.  The  principal  differences 
between  the  two  forms  of  diplomatic  action  he  in  the  fact  that  in  the 
former  case,  while  the  government  has  an  interest  in  facilitating  the 
protection  of  its  citizen's  rights  abroad,  it  is  unwilling  to  make  his 
grievance  or  difficulty  the  subject  of  an  international  complaint,  with 
the  necessary  consequences  attendant  upon  its  possible  rejection  by 
the  government  complained  against,  and  in  the  further  fact  that  the 
diplomatic  agent  has  full  discretion  as  to  the  best  method  to  pursue 
to  assist  his  fellow-citizen.  Good  offices  are  employed  by  direction 
of  the  government,  among  other  cases,  in  contractual  claims,^  for  the 
facilitation  or  acceleration  of  judicial  proceedings  in  which  a  citizen 
nay  be  involved — respecting,  however,  the  independence  of  the  local 
■authorities — and,  on  certain  occasions,  for  the  allevation  of  the  punish- 

»  Mr.  Hay,  Sec'y  of  State,  to  Mr.  McNally,  Mar.  16,  1900,  Moore's  Dig.  VII,  3; 
Pradier-Fodero,  P.,  Cours  de  droit  diplomatique,  2nd  ed.,  Paris,  1899,  524-527.  Oii 
modes  of  redress,  see  also  Halleck  (Baker's  ed.,  1908),  I,  ch.  XIV. 

*  Supra,  §  113. 


DIPLOMATIC   INTERPOSITION  441 

ment  of  citizens  convicted  abroad  of  political  offenses.^  The  unofficial 
assistance  of  a  diplomatic  agent  is  often  given  to  a  citizen  abroad  in 
the  direct  settlement  of  a  claim  against  the  local  government  or  au- 
thorities.^ In  many  cases,  the  diplomatic  agent  does  not  await  the 
authorization  of  his  government  to  employ  his  personal  good  offices 
in  behalf  of  his  fellow-citizen  requiring  assistance.^  As  the  desirability 
and  expediency  of  extending  his  good  offices  are  matters  of  personal 
discretion  entirely,  the  citizen  cannot  demand  his  assistance,  when 
unauthorized  bj'^  the  government,  as  a  matter  of  right.  It  is  always 
open  to  the  citizen  to  request  the  government's  interposition  b}'  com- 
municating with  the  Department  of  State,  which  will  determine,  in 
its  discretion,  the  most  appropriate  form  of  action,  if  any,  that  it  may 
be  expedient  to  adopt.  It  has  already  been  observ^ed  that  the  diplo- 
matic agent  may  not  officially  present  a  claim  to  a  foreign  government 
without  express  instructions  from  the  Department. 

Good  offices  usually  involve  unofficial  representations  consisting  of 
requests,  recommendations  and  other  personal  efforts.  One  of  their 
principal  characteristics  may  be  found  in  the  fact  that  if  unheeded, 
denied  or  rejected  by  the  foreign  government,  they  are  not  further 
pressed,  the  matter  being  dropped.  Only  on  rare  occasions  has  the 
unsuccessful  emplojTnent  of  good  offices  on  behalf  of  a  claimant  been 
followed  by  the  official  pressure  of  his  claim,  and  then  only  on  newly 
disclosed  evidence  or  in  a  case  where  official  support  would  have  been 
justified  in  the  first  instance. 

§  189.  Diplomatic  interposition. 

Diplomatic  interposition  in  the  technical  sense  consists  in  the  pres- 
sure of  a  claim  by  official  representations,  under  the  authority  and 
in  the  name  of  the  government.  The  term  "interposition"  is  con- 
sidered preferable  to  "intervention,"  inasmuch  as  the  latter  term 
has  a  long-established  meaning  of  armed  interference  in  the  internal 

'  ]\Ir.  Webster,  Sec'y  of  State,  to  Mr.  Gushing,  Aug.  27,  1842,  Moore's  Dig.  \l,  329. 

^  See  claim  of  American  Baptist  Church  at  Xichtheroy,  Brazil,  For.  Rel.,  1901, 
pp.  28,  29;  Brown's  claim  against  Governor  of  the  Federal  District  in  Mexico,  For. 
Rel.,  1902,  786-789. 

'  It  is  not  possible  here  to  enumerate  the  many  useful  ways  in  which  the  diplomatic 
representative  may  render  assistance. 


442  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

affairs  of  another  state.  As  soon  as  the  government  determines  to 
support  a  claim  officially,  its  presentation  to  the  defendant  govern- 
ment practically  always,  in  first  instance,  takes  the  form  of  diplomatic 
interposition,  consisting  of  a  formal  instruction  to  the  diplomatic 
representative  to  present  a  note  to  the  Minister  of  Foreign  Affairs, 
stating  the  grounds  of  complaint  and  demanding  redress.  The  claim 
having  thus  entered  the  sphere  of  international  controversy,  is  subject 
to  all  the  possible  vicissitudes  and  consequences  of  an  international 
conflict,  although  the  purpose  of  the  interposition  is  always  to  pro- 
vide a  sanction  for  the  individual  rights  of  a  citizen. 

§  190.  Mediation. 

The  second  sense  in  which  the  term  "good  offices"  is  employed 
is  quite  analogous  to  mediation  as  an  impartial  adviser  between  two 
opposing  parties.  While  good  offices  and  mediation  differ  in  detail, 
e.  g.,  in  the  right  of  the  third  person  or  mediator  to  offer  independ- 
ent suggestions  for  a  settlement,  they  both  involve  a  method  of  rec- 
onciling opposing  contentions  with  a  view  to  the  adjustment  of  a 
controversy.  It  is  less  frequently  resorted  to  in  cases  of  claims  than 
in  the  adjustment  of  other  international  differences.  The  Hague 
Conventions  for  the  pacific  settlement  of  international  disputes  adopted 
at  the  conferences  of  1899  and  1907  embodied  various  rules  concern- 
ing the  tender  and  employment  of  good  offices  and  mediation,  and 
the  institution  of  commissions  of  inquiry.^  In  a  dispute  between 
Salvador  and  Italy  in  1887,  arising  out  of  a  private  claim,  the  media- 
tion of  the  United  States  was  requested  by  Salvador,  and  on  the  sub- 
sequent tender  of  the  good  offices  of  the  American  minister,  upon 
request  of  both  parties,  the  claim  was  satisfactorily  settled.^  The 
principal  difference  between  mediation  and  arbitration,  a  method 
of  adjustment  more  frequently  employed  in  cases  of  pecuniary  claims, 
consists  in  the  fact  that  the  former  is  an  advisory  function  and  recom- 
mends, whereas  the  latter  is  a  judicial  function  and  decides. 

§  191.  Arbitration. 

Aside  from   diplomatic   negotiation,   the  method   most   frequently 

'  Scott,  J.  B.,  The  Hague  i)eace  conferences,  Baltimore,  1909;  I,  256  et  seq. 
» For.  Rel.,  1888,  I,  77,  107,  120. 


ARBITRATION  443 

used  to  settle  international  pecuniary  claims  is  arbitration.  In  the 
growth  of  this  system  of  adjusting  international  differences,  the  United 
States  has  taken  a  prominent  part.  Not  only  single  claims,  but  large 
numbers  of  general  claims  have  been  submitted  by  the  United  States 
to  the  determination  of  independent  arbitral  tribunals,  with  the  re- 
sult that  innumerable  actual  and  potential  conflicts  with  other  coun- 
tries have  been  adjusted  by  judicial  means.  Instead  of  producing 
a  rupture  of  amicable  relations,  these  claims  have  contributed  to 
the  creation  of  a  permanent  system  of  international  law.  The  ef- 
forts of  the  last  twenty  years  have  been  devoted  largely  to  stimulating 
a  resort  to  and  perfecting  the  machinerj^  of  arbitration,  with  the  re- 
suit  that  international  conventions  for  general  arbitration  have  been 
drafted  at  the  Hague  and  the  Pan-American  Conferences  and  have 
been  concluded  between  many  individual  states.^ 

No  class  of  differences  is  more  susceptible  of  settlement  by  arbitra- 
tion than  pecuniary  claims,  and  sentiment  is  growing  in  favor  of  the 
creation  of  a  permanent  international  tribunal  which  shall  have  juris- 
diction, not  only  of  contractual  claims,-  but  of  all  pecuniary  claims 
of  citizens  of  one  country  against  the  government  of  another.^  Every 
consideration  which  operates  in  the  case  of  contractual  claims  for 
their  removal  from  the  sphere  of  diplomatic  controversy  into  the 
channels  of  judicial  adjudication  is  equally  operative  in  the  case  of 
all  pecuniary  claims  involving  legal  issues. 


1  See  the  Hague  convention  of  1899  for  the  pacific  settlement  of  international  dis- 
putes, 32  Stat.  L.  1785,  and  its  revision  by  the  convention  of  1907,  .36  Stat.  L.  2199. 
See  Scott,  J.  B.,  The  Hague  peace  conferences,  I,  ch.  VI;  Treaty  between  the  U.  S. 
and  other  powers  of  America  for  the  arbitration  of  pecuniary  claims  (Pan-American 
convention  of  January  30,  1902),  34  Stat.  L.  2845;  renewed  by  convention  signed  at 
Rio  Janeiro,  Aug.  13,  1906,  proclaimed  by  the  U.  S.,  Jan.  28,  1913.  Treaty  series. 
No.  574.  The  Central  American  states  concluded  a  convention  a:t  Washington, 
Dec.  20,  1907,  2  A.  J.  I.  L.  (1908),  219  el  seq.,  by  which  they  are  committed  to  the 
arbitration  of  all  pecuniary  claims,  and  even  give  a  private  citizen  of  one  of  them  the 
right  to  sue  one  of  the  other  states  among  them. 

-Supra,  §  126. 

^  Supra,  p.  329,  note  1.  C.  C.  Hyde  and  F.  C.  Partridge  in  1914  Report  of  tne 
Lake  Mohonk  Conference  on  International  Arbitration,  pp.  125  and  143.  See  also 
address  before  American  Society  for  Judicial  Settlement  of  International  Disputes, 
Dec.  4,  1913,  Proceedings,  49-55;  see  also  General  Conclusions,  infra. 


444  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

By  the  submission  of  a  private  claim  to  arbitration  the  two  countriea 
in  controversy  provide  a  forum  to  determme  the  extent  of  the  injuries 
inflicted  by  the  one  upon  the  other  in  the  person  of  a  citizen,  and  the 
legal  right  to  and  amount  of  reparation  properl}'  payable  as  indemnity. 
The  two  states  substitute  for  the  diplomatic  negotiation  between 
the  protecting  and  the  defendant  state  an  independent  tribunal  to 
determine  the  justification  for  extending  protection  and  the  merits 
of  the  defense  in  a  given  case.^  Hence  the  great  authority  of  arbitral 
decisions^notwithstanding  certain  alleged  defects  of  the  system — 
as  a  source  of  international  law,  and  the  reliance  placed  by  Foreign 
Offices  upon  arbitral  awards,  as  precedents,  in  the  presentation  of 
and  defense  against  international  claims. 

The  powers  of  arbitrators  are  usually  defined  and  the  class  of  cases 
over  which  thej^  shall  exercise  jurisdiction  is  in  general  terms  described 
in  the  protocol  or  treaty  under  which  they  act.-  Their  jurisdiction 
under  the  protocol,  however,  and  the  question  whether  any  particu- 
lar case  presented  comes  within  the  class  to  be  arbitrated  or  within 
the  terms  of  submission  are  matters  to  be  determined  by  the  arbitrators. 
This  was  settled  in  two  important  arbitrations  between  the  United 
States  and  Great  Britain,  the  question  having  been  raised  under  arti- 
cle VII  of  the  Jay  treaty  of  1794  and  again  with  regard  to  the  power 
of  the  Geneva  tribunal  to  deal  with  indirect  claims.^  When  such  an 
arbitral  tribunal  has  been  brought  into  existence  by  agreement  of 
the  parties,  it  is  an  independent  court  of  high  international  jurisdic- 
tion, competent,  within  the  limits  of  the  powers  conferred  upon  it, 
"to  bring  under  judgment  the  decisions  of  the  local  courts  of  both 
nations,  and  beyond  the  competence  of  either  government  to  inter- 
fere with,  direct,  or  obstruct  its  deliberations."    ^ 


1  See  RudlofT  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  182,  185,  citing  opinion 
(jf  Sec'3-  of  State  Evarts  quoted  in  Moore's  Arb.  2599. 

-  Moore's  Dig.  VII,  §  1072;  Ralston,  International  arbitral  law,  Boston,  1910, 
pp.  19-21;  Tchernoff,  op.  oil.,  375  el  seq. 

3  Moore's  Dig.  VII,  §  1073;  Ralston,  op.  cil.,  21-24. 

*  Mr.  Evarts,  Sec'y  of  State,  to  the  Spanish  minister,  Mar.  4,  1880,  quoted  in 
Moore's  Arb.  2599  and  cited  with  approval  in  Rudloff  (U.  S.)  v.  Venezuela,  Feb.  17, 
1{K)3,  Ralston,  185 


NON-AMICABLE    METHODS  445 

NON-AMICABLE   METHODS 

The  non-amicable  methods  of  redress  include  a  suspension  of  dip- 
lomatic relations,  retorsion,  a  display  of  force,  the  actual  use  of  force, 
reprisals  and  war. 

§  192.  Withdrawal  of  Diplomatic  Representative. 

On  several  occasions,  the  unsatisfactorj'  termination  of  diplomatic 
negotiations  for  the  settlement  of  international  claims  has  led  to  the 
suspension  of  diplomatic  relations  between  the  countries  involved.^ 
In  1826  the  American  charge  demanded  his  passports  from  Brazil 
because  of  the  alleged  unwarranted  capture  of  certain  American  ves- 
sels, diplomatic  relations  being  subsequently  resumed  upon  the  pay- 
ment of  adequate  indemnities.  The  failure  of  the  American  minister 
in  Mexico  to  secure  redress  for  various  arbitrary  seizures  of  property 
and  ill-treatment  of  American  citizens  led,  in  1858,  to  a  suspension 
of  diplomatic  relations  with  that  government.  Italy  temporarily 
withdrew  its  Ambassador  to  the  United  States  because  of  the  unwil- 
lingness of  the  United  States,  early  in  the  negotiations,  to  acknowledge 
any  liability  for  the  deaths  of  Italian  subjects  in  the  New  Orleans 
riot  of  1891.  The  Department  of  State  has  on  several  occasions  threat- 
ened to  withdraw  the  American  legation  unless  the  foreign  country 
in  question  settled  or  agreed  to  settle  the  claims  of  American  citizens. 
Amicable  relations  between  France  and  Venezuela,  interrupted  by 
the  withdrawal  of  the  French  minister  in  1906,  l^ecause  of  Venezuela's 
refusal  to  pay  certain  claims,  were  restored  in  1913  by  the  conclusion 
of  a  treaty  submitting  the  claims  to  arbitration.- 

§  193.  Retorsion. 

Retorsion  signifies  retaliation  in  kind.^  This  method  of  redress 
has  but  rarely  been  used  for  the  non-payment  of  pecuniary  claims. 

1  Moore's  Dig.  VII,  §  1089. 

-  13  R.  G.  D.  I.  P.  (1906),  548;  Protocol  signed  Feb.  11,  1913,  20  R.  G.  D.  I.  P. 
(1913),  506. 

3  Moore's  Dig.  VII,  §  1090;  HuUeck  f  Baker's  ed.,  1908),  I,  503;  Rapisardi-MirabeUa 
in  16  R.  D.  I.  (n.  s.),  1914,  pp.  223-244  (first  installment);  see  bibliography,  pp.  240- 
241. 


446  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

The  stoppage  by  the  King  of  Prussia  in  1753  of  the  interest  due  to 
British  subjects  on  the  Silesian  loan,  until  he  obtained  indemnities 
for  the  unjust  capture  of  certain  Prussian  vessels  and  their  condemna- 
tion by  British  prize  courts  may  be  considered  a  form  of  retorsion. 
Upon  the  refusal  of  China  in  1855  to  pay  a  claim  for  personal  injuries 
to  an  American  citizen,  the  American  Minister  was  instructed  "to 
resort  to  the  measure  of  withholding  duties"  to  the  amount  of  the 
claim.  ^ 

Retorsion  is  more  often  used  in  cases  where  a  country  has  placed 
the  citizens  or  interests  of  another  country  under  a  general  disability, 
e.  g.,  the  exclusion  from  its  ports  of  the  vessels  of  a  certain  nation, 
the  exclusion  of  products  of  a  certain  country  by  differential  import 
duties  or  the  enactment  of  discriminatory  laws  against  the  citizens 
of  one  particular  country  as  compared  with  aliens  generally.  The 
state  affected  may  retaliate  by  the  enactment  of  similar  measures. 
Recent  tariff  acts  of  the  United  States,  prior  to  the  Act  of  1913,  have 
given  the  President  power  to  prescribe  a  differential  duty  against 
the  products  of  a  country  discriminating  against  American  products, 
and  discriminations  against  American  vessels  in  foreign  ports  were 
to  be  met  by  retaliatory  measures. 

§  194.  Display  of  Force. 

The  display  of  force  and  the  threat  to  use  it  if  reparation  for  an 
international  offense  is  not  promptly  made,  have  frequently  proved 
an  effective  means  of  obtaining  redress  in  the  form  of  an  indemnity 
or  a  guarantee  of  security.  This  display  of  force  usually  takes  the  form 
of  a  national  war-ship  appearing  before  the  port  of  the  foreign  country 
alleged  to  be  in  default.  The  moral  influence  exerted  by  the  presence 
of  a  war-vessel  is  great,  and  has  served  not  only  to  secure  demanded 
reparation  in  given  cases,  but  in  quarters  of  the  world  subject  to  fre- 
quent domestic  disorder  has  served  to  prevent  an  abuse  of  aliens' 
rights,  particularly  of  the  nationals  of  the  country  to  which  the  vessel 
belongs.  War-vessels  have  therefore  on  occasion  been  stationed  for 
extended  periods  of  time  in  the  waters  of  the  Mediterranean,  around 
Turkey,  and  in  the  waters  near  Haiti  and  the  Dominican  Republic. 

'  Mr.  Ma-cy,  Sec'y  of  State,  to  Mr.  Parker,  Oct.  5,  1855,  Moore's  Dig.  VII,  106. 


DISPLAY    OF    FORCE  447 

At  a  time  when  revolutions  were  more  frequent  in  Latin-America 
than  they  now  are,  it  was  not  unusual  to  have  numbers  of  foreign 
war-ships  in  certain  harbors  for  the  protection  of  aliens.  The  use  of 
war-ships  for  such  a  purpose  of  police,  perhaps  the  most  defensible 
use  of  armed  vessels,  was  recently  illustrated  in  the  harbor  of  Vera 
Cruz,  Mexico. 

Practically  all  the  great  powers  have  at  different  times  resorted  to 
a  display  of  force  to  give  moral  support  to  a  request  for  the  protec- 
tion of  nationals  in  foreign  countries  or  for  the  redress  of  injuries  in- 
flicted upon  nationals.  Joint  action  has  often  been  taken  by  various 
powers  for  this  purpose,  e.  g.,  in  China,  in  Buenos  Aires,  in  Mexico 
and  in  Venezuela.^  The  United  States  resorted  to  the  display  of  force 
in  Japan  in  1852,  in  Turkey  on  several  occasions,^  and  within  recent 
years  in  Haiti,  the  Dominican  Republic  and  Mexico.  In  1902,  a  French 
war-ship  threatened  to  fire  upon  a  town  in  Venezuela,  unless  certain 
French  merchants,  arrested  for  the  non-payment  of  customs  dues 
previously  paid  to  revolutionists,  were  released.'^  In  1897,  the  threat- 
ened bombardment  of  Port-au-Prince  by  German  war-ships  effected 
the  release  of  a  Mr.  Liiders,  a  German  subject,  alleged  to  have  been 
arbitrarily  imprisoned  by  the  Haitian  authorities.  "*  In  May  1914,  the 
appearance  of  a  British  war-ship  in  the  harbor  of  Port-au-Prince  suc- 
cessfully supported  a  demand  of  Great  Britain  for  the  prompt  settle- 
ment of  the  British  portion  of  the  Peters  claim,  decided  in  favor  of 
Germany  and  Great  Britain  by  an  arbitral  tribunal  in  Haiti. 

There  seems  little  doubt  that  the  great  powers  in  their  ready  resort 
to  ultimatums  and  threats  of  the  use  of  force  to  exact  the  payment 
of  pecuniary  claims,  particularly  in  Latin-America,  have  often  abused 
their  rights  and  have  inflicted  gross  injustice  upon  weak  states.^ 

In  response  to  an  inquiry  of  the  Turkish  minister  at  Washington 

1  See  Instruction  of  Lord  J.  Russell  to  Sir  C.  Wyke,  Mar.  30,  1801  (Mexico),  52 
St.  Pap.  239. 

2  Moore's  Dig.  VII,  §§  1091,  1093. 

3  Sachet  case,  9  R.  G.  D.  I.  P.  (1902),  628.    The  threat  achieved  its  object. 

^23  Law  Mag.  and  Rev.  (1897),  129-131;  5  R.  G.  D.  I.  P.  (1898),  103;  Pradier- 
Fodere,  Cours  de  droit  diplomatique,  2nd  ed.,  Paris,  1899,  pp.  528-531,  note.  See  also 
M^nos,  Solon,  L'affaire  Liiders,  Paris,  1898. 

5  Pradier-Fodere,  I,  §  402. 


448  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

asking  an  explanation  of  the  sending  of  an  American  war-vessel  to 
Turkish  waters,  Secretary  Olney  stated  that  the  visit  of  the  vessel 
was  "in  pursuance  of  a  long-established  usage  of  this  government 
to  send  its  vessels,  in  its  discretion,  to  the  ports  of  any  country  which 
may  for  the  time  being  suffer  perturbation  of  public  order  and  where 
its  countrymen  are  known  to  possess  interests.  This  course  is  very 
general  with  all  other  governments,  and  the  circumstance  that  a  tran- 
sient occasion  for  such  visits  may  exist  does  not  detract  from  their 
essentially  friendly  character."  ^ 

It  may  be  said  that  the  United  States  urges  upon  consuls  and  dip- 
lomatic officers  the  use  of  caution  and  discretion  in  summoning  the 
assistance  of  national  war-vessels,  in  time  of  disorder,  for  the  protection 
of  citizens.^ 

§  195.  Use  of  Armed  Force. 

The  army  or  navy  has  frequently  been  used  for  the  protection  of 
citizens  or  their  property  in  foreign  countries  in  cases  of  emergency 
where  the  local  government  has  failed,  through  inability  or  unwilling- 
ness, to  afford  adequate  protection  to  the  persons  or  propertj'^  of  the 
foreigners  in  question.  This  action  has  by  some  writers  been  denomi- 
nated as  intervention  and  has  given  rise  to  much  confusion,  due  to  a 
failure  to  distinguish  between  political  intervention  and  non-political 
y  intervention  or  interposition.  The  landing  of  armed  forces  for  the 
protection  of  citizens  has  practically  always  been  free  from  any  at- 
tempt to  interfere  in  the  internal  political  affairs  or  administration  of 
the  country  entered,  and  when  confined  to  the  purpose  of  assuring  the 
safety  of  citizens  abroad,  or  exacting  redress  for  a  delinquent  failure 
to  afford  local  protection,  the  action  must  be  considered,  not  as  a  case 
of  intervention,  but  as  non-belligerent  interposition.^     This  form  of 

'  Mr.  Olney,  Sec'y  of  State,  to  Mavroyem  Bey,  Oct.  15,  1895,  For.  Rel.,  1895,  IL 
1324. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Neill,  Nov.  16,  1887,  Moore's  Dig.  VII,  109. 

'  The  ablest  discussion  of  the  distinction  between  political  and  non-political  inter- 
vention, and  the  true  nature  of  interposition,  with  quotations  from  authorities  and 
a  corn[)ilation  of  illustrative  cases  is  to  be  found  in  a  Moniorandum  of  J.  Reuben 
Clark,  Jr.,  Solicitor  for  the  Department  of  State  on  the  "Right  to  protect  citizens  in 
foreign  countries  by  landing  forces,"  Washington,  August,  1912,  Revised  edition. 
70  folio  p. 


USE    OF   ARMED    FORCE  449 

protection  has  frequently  been  exercised  by  strong  countries  whose 
citizens  are  found  in  weak  states  where  governmental  control  is  at 
times  inadequate  for  the  preservation  of  order,  and  for  the  fulfillment 
of  their  international  duty  of  protection.  The  United  States  has  on 
many  occasions,  either  alone  or  in  conjunction  with  other  powers, 
used  its  military  forces  for  the  purpose  of  occupying  temporarily  parts 
of  foreign  countries  to  secure  adequate  protection  for  the  lives  and 
property  of  American  citizens.  While  such  action  has  generally  been 
necessary  imder  the  circumstances,  and  while  it  cannot  be  considered 
political  intervention,  it  is,  nevertheless,  an  impeachment  of  the  ef- 
fective sovereignty  of  the  country  occupied.^ 

Among  the  various  purposes  for  which  troops  and  marines  have 
been  landed,  are  the  following:  -  (1)  for  the  simple  protection  of  Ameri- 
can citizens  in  disturbed  localities,  the  activity  of  the  troops  being 
in  the  nature  of  police  duty;  ^  (2)  for  the  punishment  of  natives  for  the 
murder  or  injury'  of  American  citizens  in  semi-civilized  or  backward 
countries;  *  (3)  for  the  suppression  of  local  riots,  and  the  restoration 
and  preservation  of  order; '"  (4j  for  the  collection  of  indemnities,  either 
with  or  without  the  delivery  of  a  previous  ultimatum;  ^  (5j  for  the 
seizure  of  custom-houses,  as  security  for  the  paj^ment  of  claims;  '^  and 

1  See  address  of  Mr.  Root,  printed  in  4  A.  J.  I.  L.  (1910),  520,  521. 

2  A  brief  statement  of  most  of  the  occasions  on  which  American  forces  have  been 
landed  in  foreign  countries  for  the  protection  of  American  interests  will  be  found  in 
the  Appendix  to  the  Solicitor's  Memorandum,  op.  ciL,  47  et  seq.  These  occasions  are 
classified  in  some  detail  at  p.  31  el  seq.  See  also  Moore's  Dig.  VII,  §§  1092  and  1093, 
and  Robin,  R.,  Des  occupations  militaires  en  dehors  des  occupations  de  guerre,  Paris. 
1913,  824  p. 

3  Memorandum,  pp.  31  and  33  and  citations  to  Appendix. 

*  Memorandum,  pp.  31  and  32  and  citations  to  Appendix.  Such  punitive  expedi- 
tions were  undertaken  at  various  times,  among  other  places,  in  the  Fiji  Islands, 
Samoa,  Formosa,  China,  Korea,  and  the  Falkland  Islands. 

*  In  Hawaii,  1874;  in  Egj-pt,  1882;  in  Mexico,  1876;  Appendix  to  Memorandum,  60, 
61;  Organization  of  poUce  bj'  France  and  Spain  in  Morocco,  1907,  For.  Rel.,  1907, 
899. 

*  Island  of  Johanna,  1851;  Nicaragua,  1854;  Japan,  1864;  Haiti,  1888  (Case  of  the 
Haitian  Republic,  For.  Rel.,  1889,  491  et  seq.,  503).  Occupation  by  French  marines  in 
1901  of  part  of  Turkish  island  of  Mitylene,  a  measure  to  obtain  payment  of  claims  of 
Lorando  and  Tubini.  See  Moncharville  in  9  R.  G.  D.  I.  P.  (1902),  677.  Memorandum 
32,  33,  and  citations  to  Appendix. 

^  Action  by  France  in  Dominican  Rep.  and  various  powers  in  V^ezuela.     U.  S 


450  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

for  purposes  such  as  the  maintenance  of  a  stable  government,  the 
destruction  of  pirates  infesting  certain  areas,  and  other  objects. 

At  times  the  punitive  operations  undertaken  for  the  protection  of 
nationals  and  their  interests  have  bordered  close  upon  belligerent 
action  in  the  full  sense  and  would  have  been  so  considered  had  they 
been  directed  against  stronger  states.  This  is  so  particularly  in  the 
case  of  bombardments,  which  on  occasion  have  been  directed  against 
coast  towns  by  British  and  American  naval  forces  as  a  punishment 
for  offenses  against  nationals  or  for  the  failure  to  make  reparation.^ 
It  is  hardly  less  so  in  the  case  of  pacific  blockade,  an  anomalous  action 
in  the  nature  of  reprisal  whose  principal  justification  lies  in  the  fact 
that  it  has  often  successfully  achieved  its  object  in  a  measurably  short 
time,  without  precipitating  war  between  the  countries  in  controversy 
or  third  states  whose  interests  are  unavoidably,  in  some  degree,  dele- 
teriously  affected. 

The  occasions  on  which  troops  have  been  landed  have  varied,  al- 
though it  has  always  been  under  circumstances  where  the  protective 
faculties  of  the  local  government  have  been  so  weakened  that  the 
security  of  aliens,  particularly  nationals  of  the  interfering  state,  seemed 
so  precarious  that  some  measure  of  self-help  was  deemed  necessary. 
This  has  been  the  case  particularly  in  time  of  revolution  and  civil 
war,  when  the  belligerent  activities  of  the  factions  seeking  control  of 
the  government  deprived  aliens  of  all  guaranty  of  safety  for  their 
persons  or  property.^ 

The  landing  of  foreign  troops  has  not  always  been  against  the  will 
of  the  local  government,  but  on  the  contrary,  has  sometimes  been  car- 
ried out  in  response  to  an  express  invitation.  The  activities  of  the 
intervening  troops,  belonging  to  one  nation  or  to  several  acting  jointly, 
have  assumed  various  forms;  sometimes  they  have  remained  abso- 
lutely neutral  between  the  contending  factions,  confining  themselves 

seizure  of  custom-house  and  occupation  of  Vera  Cruz  in  1914  was  a  reprisal  ostensibly 
for  insult  to  U.  S.  flag  at  Tampico, 

'  E.  g.,  Bombardment  of  Greytown  by  the  U.  S.  S.  Cyane,  1854,  Moore's  Dig.  VII, 
112-116;  Bombardment  of  Omoa,  Honduras,  by  British  S.  S.  Niobe,  1873,  67  St. 
I*ap.  955  et  seq. 

^  See  the  many  occasions  enumerated  in  Memorandum,  pp.  32  and  33  and  Ap- 
j)endix. 


USE   OF   ARMED    FORCE  451 

to  preventing  any  aggressions  or  attacks  upon  legations,  consulates, 
foreigners  or  non-combatants  generally;  sometimes  they  have  supported 
one  faction  against  another  or  the  constituted  government  against 
insurgents;  sometimes  they  have  insisted  upon  the  maintenance  of 
a  neutral  zone  in  which  no  fighting  was  to  be  permitted,  as  in  the  Do- 
minican Republic  in  1904  and  1914  and  in  Honduras  in  1911;  sometimes 
they  have  prevented  the  bombardment  of  certain  towns  or  the  block- 
ade of  certain  ports  in  which  foreign  interests  have  been  considerable. 

The  interference  of  the  United  States  in  these  matters  has  been 
frequent  in  Latin-America.  The  hegemony  of  the  United  States  on 
this  contment  and  the  force  of  the  Monroe  Doctrine  have  served  to 
induce  this  government  to  assume,  in  greater  degree  than  any  other 
foreign  government,  a  vague  measure  of  primacy  in  the  maintenance 
of  order  in  the  disturbed  areas  of  Latin-America.  It  is  not  true,  how- 
ever, as  has  often  been  asserted,  that  the  Monroe  Doctrine  throws 
upon  the  United  States  responsibility  for  the  safety  of  foreigners  in 
the  countries  to  the  south.  The  seizure  of  custom-houses  or  the  tem- 
porary occupation  of  ports  by  European  powers,  when  undertaken 
for  the  sole  purpose  of  protecting  their  subjects  or  obtaining  redress 
for  injuries,  cannot  be  regarded  as  an  impeachment  of  the  Monroe 
Doctrine.  Moreover,  while  the  United  States  was  not  formally  a 
party  to  the  Washington  Conventions  of  1907  between  the  countries 
of  Central- America,  this  government,  nevertheless,  regards  itself 
as  in  a  measure  responsible  for  their  execution,  and  on  this  ground 
has  justified  its  intervention  in  revolutions  and  disagreements  in  and 
between  those  countries  designed  to  maintain  peace.  The  existence 
of  the  Piatt  amendment  in  the  Cuban  treaty  and  its  probable  early 
extension  to  Nicaragua,  and  the  financial  control  in  the  Dominican 
Republic  arising  out  of  the  treaty  of  1907,  throws  upon  the  United 
States  a  certain  measure  of  guardianship  in  the  maintenance  in  those 
countries  of  a  responsible  government  capable  of  meeting  its  obliga- 
tions and  protecting  foreigners. 

Foreign  military  forces  have  on  occasion  been  landed  in  time  of 
actual  war  between  two  countries  to  protect  legations  or  consulates.^ 

^  U.  S.  forces  landed  in  Korea,  in  1894  (Appendix  to  Memorandum,  63)  and  in  Hon- 
duras in  1907  (Appendix,  66).  i.  ' 


452  THE    DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

While  the  landing  of  troops  in  the  cases  above  mentioned  has  been 
purely  protective,  they  have  not  always  been  able  to  avoid  belligerent 
operations  to  effect  their  purpose.  One  of  the  most  notable  of  these 
interventions  was  the  joint  action  of  the  powers  in  China  in  1900  at  the 
time  of  the  Boxer  uprising,  and  the  landing  of  American  troops  in 
Nicaragua  in  1910,  which  resulted  in  the  loss  of  a  few  American  lives.  ^ 
While  these  operations  have  in  origin  practically  always  had  the  char- 
acter of  non-political  intervention,  they  have  at  times  resulted  in 
an  actual  interference  in  the  internal  affairs  of  another  country,  by 
accident  or  unavoidable  consequence,  however,  rather  than  principal 
design. 
■^  The  question  has  occasionally  been  raised  whether  the  use  of  the 
Aarmed  forces  of  the  United  States  for  the  protection  of  American  citi- 
zens abroad  requires  Congressional  legislation.  The  landing  of  forces 
in  foreign  countries  for  the  purpose  of  protecting  American  citizens 
is  not  normally  an  act  of  war,  or  a  declaration  of  war,  although  it 
might  possibly  lead  to  war.  Inasmuch  as  the  Constitution  vests  in 
Congress  authority  ''to  declare  war,"  and  does  not  empower  Con- 
gress to  direct  the  President  to  perform  his  constitutional  duties  of 
protecting  American  citizens  on  foreign  soil,  it  is  believed  that  the 
Executive  has  unlimited  authority  to  use  the  armed  forces  of  the 
United  States  for  protective  purposes  abroad  in  any  manner  and  on 
any  occasion  he  considers  expedient.  It  is  true  that  President  Buchanan 
took  a  contrary  view  of  his  duties,  and  that  Congress  has  on  various 
occasions,  by  Act  and  Joint  Resolution,-  directed  or  authorized  the 
President  to  employ  the  military  forces  of  the  United  States  in  the 
protection  of  the  interests  of  American  citizens  abroad;  yet  in  view 
of  the  above,  it  seems  that  such  authorization  is  entirely  unnecessary, 
if  not  without  constitutional  warrant.^  Moreover,  the  commanders 
of  the  public  vessels  of  the  United  States  in  foreign  waters  have  ou 
many  occasions  exercised  a  wide  discretion  in  protecting  American 

'  Memorandum,  33,  and  citations  to  Appendix.    See  particuladj^  p.  67. 
i     '' Supra,  p.  363.    See,  e.  g.,  Act  of  March  3,  1819,  3  Stat.  L.  510  (protecting  mer- 
chant vessels  from  piratical  aggressions);  Resolution  of  June  2,  1858  {Water  Witch 
and  other  claims  against  Paraguay);  J.  Res.,  June  19,  1890  (V^enezuelan  Steam  Trans- 
portation Co.  claim  v.  Venezuela);  J.  Res.  of  Mar.  2,  1895  (Mora  claim  i'.  Spain). 

'  See  the  ahl(>  discussion  in  Moinoranduni  of  the  Solicitor,  op.  cit.,  34—43. 


i 


REPRISALS  453 

interests  by  force  of  arms,  and  have  in  emergencies  acted  without 
special  authority  even  of  the  Executive,  although  responsible  to  him 
for  their  action.' 

§  195.  Reprisals. 

Reprisals  are  retaliatory  measures  of  self-help  taken  by  states, 
as  a  last  resort,  to  obtain  redress  for  an  injur3\-  Such  measures  may 
assume  a  variety  of  forms,  and  consist  of  some  seizure  of  the  property 
or  some  equivalent  injury  to  the  interests  of  the  offending  state.  Their 
dangerous  proximity  to  war  measures  is  apparent.  In  former  times, 
special  letters  of  reprisal  were  issued  to  particular  individuals  who 
had  sustained  injury  at  the  hands  of  a  foreign  government  or  its  sub- 
jects, authorizing  them  to  exact  redress  on  their  own  account.  The 
United  States  has  never  granted  authorit}'  for  special  reprisals,  and 
the  practice  has  universally  fallen  into  desuetude.  General  reprisals 
by  the  nation  are  not  infrequent  as  a  mode  of  redress.  One  of  the 
best  examples  of  such  a  measure  was  the  recommendation  of  Presi- 
dent Jackson  proposing  to  exclude  French  vessels  and  products  from 
the  United  States  until  the  French  chambers  appropriated  the  in- 
demnity payable  under  the  treaty  of  1831.^  They  have  been  resorted 
to  frequentl}^  in  recent  years.  ^ 

Among  other  measures  of  reprisal  adopted  for  the  non-payment  of 
pecuniary  claims,  have  been  the  following:  the  seizure  of  vessels  of 
the  offending  state  ;'^  the  seizure  of  custom-houses  and  the  temporary 

1  iMoore's  Dig.  VII,  §  1093. 

-  See  the  able  discussion  in  Lawrence's  Wheaton,  2nd  ed.,  1863,  506-510;  Vattel, 
liv.  II,  ch.  18,  §  342;  Moore's  Dig.  VII,  §§  1095,  1096. 

'  Moore's  Dig.  VII,  123-130. 

*  Moore's  Dig.  VII,  §  1096.  The  recent  abrogation  by  the  U.  S.  of  the  treaty  of 
1832  with  Russia  because  of  Russia's  unwillingness  to  admit  American  citizens  of 
Jewish  faith,  may  weU  be  considered  a  measure  of  reprisal,  under  the  circum- 
stances. 

'"  Great  Britain  seized  vessels  of  Naples  in  1840,  for  alleged  violation  of  treaty  in 
the  grant  of  a  sulphur  monopoly  in  1816,  Lawrence's  WTieaton,  509;  British  re- 
prisals against  Spain,  9  St.  Pap.  897;  Great  Britain  in  1861  seized  five  vessels  of 
Brazil  in  Rio  Janeiro  as  reprisal  for  non-payment  of  Prince  of  Wales  claim,  Hogan, 
Pacific  blockade,  117;  Blockading  powers,  Germany,  Great  Britain  and  Italj'  seized 
Venezuelan  vessels  in  1903,  For.  Rel.,  1903,  417;  British  commander  instructed  to 
seize  Nicaraguan  vessels  in  1895,  For.  Rel.,  1895,  II,  1025-1034. 


454  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

occupation  of  towTis;  ^  the  bombardment  of  coast  towns;  ^  the  block- 
ade of  ports  and  the  interruption  of  commerce;  ^  the  despatch  of  puni- 
tive expeditions,^  the  declaration  of  embargoes  ^  and  the  passage  of 
non-intercourse  acts,®   and  other  forcible   measures   having   in   view 

1  E.  g.,  British  occupation  of  Corinto,  1895,  For.  Rel,  1895,  II,  1025, 1032.  French 
seizure  of  the  fort  of  San  Juan  de  Ulloa,  Mexico,  1838.  This  actually  resulted  in  a 
declaration  of  war  by  Mexico,  settled  by  treaty  of  peace  of  March  9,  1839.  Alvarez 
in  3  A.  J.  I.  L.  (1909),  298.  French  seizure  of  custom-house  at  Mitylene,  1901,  For. 
Rel.,  1901,  529  and  9  R.  G.  D.  I.  P.,  677.  This  has  been  done  in  Latin-America  on 
several  occasions  by  various  powers. 

2  British  bombardment  of  Omoa,  1873,  67  St.  Pap.  955;  U.  S.  bombardment  of 
Greytown,  1854,  Moore's  Dig.  VII,  112-116. 

3  The  anomalous  remedy  known  as  pacific  blockade  has  been  used  for  the  redress  of 
many  wrongs  besides  those  arising  out  of  the  non-payment  of  claims.  The  nature  of 
this  extraordinary  remedy  is  best  discussed  in  Hogan,  Albert  E.,  Pacific  blockade, 
Oxford,  1908;  Ducrocq,  Represailles  en  temps  de  paix,  Paris,  1901;  and  Staudacher, 
H.,  Die  Friedensblockade,  Leipzig,  1909.  Illustrative  cases  may  be  found  in  Hogan, 
73  et  seq.;  Moore's  Dig.  VII,  §  1097,  and  Tchernoff,  op.  cit.,  238-244.  It  has  on  several 
occasions  been  used  as  a  measure  of  reprisal  for  the  non-payment  of  claims,  notably 
by  France  against  Portugal  in  1831  (Hogan,  77;  Ducrocq,  100;  Tchernoff,  239; 
Moore's  Dig.  VII,  136);  by  France  against  Mexico  in  1838  (Hogan,  85;  Ducrocq,  111; 
Moore's  Dig.  VII,  136);  by  Great  Britain  against  Greece  in  1850  in  the  Pacifico, 
Finlay  and  Fantome  cases  (Hogan,  105;  Calvo,  III,  §  1841;  39  St.  Pap.  480;  Law- 
rence's Wheaton,  2nd  ed.,  509;  Moore's  Dig.  VII,  132);  by  Great  Britain  against 
Brazil  in  1862  in  the  Prince  of  Wales  and  Forte  cases  (Hogan,  117;  73  St.  Pap.  81  et 
seq.;  Moore's  Dig.  VII,  137);  and  by  Great  Britain,  Germany  and  Italy  against 
Venezuela,  1902-1903  (For.  Rel.,  1903,  417-439;  Hogan,  149;  Zeballos  in  1  Bull, 
argentin  de  dr.  int.  prive,  145-177).  While  pacific  blockade  is  a  measure  of  constraint 
much  milder  than  war,  it  merges  easily  into  war,  if  resistance  is  long-continued;  see, 
c.  g.,  the  French  blockade  of  Formosa,  1884  (Hogan,  122;  Ducrocq,  129).  The  United 
States  has  always  insisted  that  pacific  blockade  must  not  alTect  the  rights  of  states 
not  parties  to  the  controversy  (For.  Rel.,  1903,  420  et  seq.;  Moore's  Dig.  VII,  141); 
but  it  is  hardly  possible  to  avoid  interfering  with  the  commerce  of  third  states,  even 
if  vessels  of  the  blockaded  country  only  are  seized. 

*  P>ench  expedition  against  Portugal,  1831,  18  St.  Pap.  395,  397;  British  expedi- 
tion against  Abyssinia,  1867,  Bonfils,  §  440;  Agreement  between  Great  Britain, 
France  and  Spain,  1861,  for  taking  of  forcible  measures  against  Mexico,  Moore's 
Dig.  VI,  §  956;  Lawrence's  Wheaton,  509. 

*  The  United  States  in  1807  passed  an  embargo  act  prohibiting  the  departure  of 
vessels  from  U.  S.  ports  as  a  measure  of  reprisal  for  Napoleon's  Berlin  decree  of  1806 
and  the  British  orders  in  council.  Other  embargo  acts  were  passed  in  the  years  be- 
tween 1807  and  1814.    Moore's  Dig.  VII,  §  1008. 

'  Non-intercourse  Act  of  1798  suspended  commercial  intercourse  between  U.  S. 
and  France  and  her  dependencies.  By  the  Act  of  1809,  it  was  made  unlawful  to  import 
French  products.    Moore's  Dig.  VII,  §  1099. 


i 


WAR  455 

retaliation  and  the  exaction  of  redress.^  An  example  of  a  negative 
reprisal  may  be  found  in  the  instruction  to  the  British  minister  in 
Mexico  in  1858,  making  the  recognition  of  the  Constitutional  Govern- 
ment contingent  upon  acknowledgment  by  that  Government  of  liability 
for  certain  claims  of  British  subjects.- 

It  will  have  been  observed  that  in  most  of  these  cases  the  forcible 
action  undertaken  was  in  fact  the  establishment  of  a  state  of  limited 
war,  and  in  some  cases  war  actually  resulted.^ 

§  197.  War. 

Only  in  rare  instances  has  a  state  actuall}'  undertaken  war  in  the  full 
sense — in  its  physical  manifestations  merely  general  reprisals — as  a  mode 
of  redress  for  the  failure  to  extend  local  protection  to  its  nationals 
or  for  the  non-payment  of  claims.  The  means  of  constraint  enumer- 
ated above  have  at  times  assumed  the  form  of  hostile  belligerent  ac- 
tion, but  the  protecting  state  has  usually  endeavored  to  avoid  a  con- 
struction of  its  acts  which  might  entail  all  the  legal  consequences  of 
war,  particularly  in  its  relations  with  third  states.  Nevertheless  Great 
Britain's  armed  expedition  against  Abyssinia  in  1867  on  account  of 
the  imprisonment  and  detention  of  several  British  subjects  has  been 
considered  a  war  measure,^  and  Italy  expressly  alleged  that  the  prin- 
cipal reason  for  its  declaration  of  war  against  Turkey  in  1912  was 
the  non-paj'ment  of  Italian  pecuniary  claims.  It  may  be  remembered 
that  one  of  the  causes  of  the  war  of  1812  between  the  United  States 
and  Great  Britain  was  Great  Britain's  continued  interference  with 
American  vessels  and  the  removal  of  American  seamen  alleged  to  be 
British  subjects.  The  claims  of  citizens  of  the  United  States  against 
Mexico  for  "grievous  wrongs  perpetrated  by  Mexico"  were  recited  by 
President  Polk  in  his  special  message  of  May  11,  1846  as  one  of  the 
causes  which  required  the  adoption  of  war  measures. °    Not  a  few  inter- 

^  E.  g.,  the  use  of  naval  forces  to  support  threats  and  ultimatums,  supra,  p.  449 
and  Memorandum  of  Solicitor,  31-33. 

2  Lord  J.  Russell  to  Sir  C.  Wyke,  Mar.  30,  1861,  62  St.  Pap.  237. 

» French  blockade  of  Mexican  ports  in  1838,  Hogan,  85,  Moore's  Dig.  VII,  136; 
French  blockade  of  Formosa,  1884,  Hogan,  122. 

«  Bonfils,  §  440;  Annual  Register,  1868. 

•  S.  Doc.  337,  29th  Cong.,  Ist  sess.,  5. 


456  THE    DIPLOMATIC    PROTECTION    OK    CITIZENS   ABROAD 

national  conflicts  have  had  their  origin  in  public  wrongs  to  the  state 
arising,  however,  out  of , persistent  violations  of  the  commercial  or  other 
interests  of  nationals. 

This  cursory  survey  of  the  means  of  assuring  protection  to  citizens 
abroad  and  of  exacting  redress  for  a  violation  of  their  rights  will  have  in- 
dicated the  variety  of  agencies  and  methods  authorized  and  recognized 
by  international  law  for  the  enforcement  of  the  rights  of  aliens.  If  these 
measures  of  constraint  are  usually  applied  by  strong  against  weak 
states,  it  is  largely  because  it  is  in  the  latter  that  the  treatment  of  aliens 
frequently  falls  below  the  standard  prescribed  by  international  law  and 
civilized  custom  and  because  in  these  states  local  protective  agencies, 
both  administrative  and  judicial,  are  often  deemed  unsatisfactory  as 
guarantees  of  adequate  remedies  for  defects  in  the  measures  adopted 
for  the  security  of  life  and  property. 


PART  III 

THE  OBJECT  OF  PROTECTION— THE  PERSON 
AND  PROPERTY  OF  CITIZENS 

CHAPTER  I 
CITIZENSHIP  THE  PRIMARY  TITLE  TO  PROTECTION 

§  198.  American  Citizenship. 

It  is  now  proper  to  enter  upon  a  study  of  that  branch  of  the  present 
subject  which  relates  to  the  legal  status  and  qualifications  necessary 
to  the  individual  to  entitle  him  to  protection.  While  citizenship,  as 
has  already  been  observed,  is  the  primary  condition  of  or  title  to 
protection,  it  will  be  noted  that  this  principle  has  numerous  modali- 
ties and  variations.  It  will  be  necessary  to  examine  the  various  classes 
of  persons  to  whom  protection  is  extended  by  the  government,  and  the 
effect  upon  their  right  to  protection  of  various  legal  relations  into 
which  they  may  enter. 

Citizenship  in  constitutional  law  and  citizenship  or  nationality  in 
international  law  are  not  necessarily  coextensive  terms.  Having 
already  discussed  the  different  senses  in  which  the  term  "citizen" 
is  used  and  the  classes  of  persons  to  whom  it  is  applied  in  the  United 
States,^  attention  may  now  be  confined  to  the  international  phases 
of  citizenship  in  its  relation  to  diplomatic  protection.^ 

The  principal  statutory  provisions  relating  to  citizenship  in  the 
United  States  are  contained  in  title  XXV,  §§  1992  to  2001,  of  the 

1  Supra,  §  12.    See  also  H.  Doc.  326,  o9th  Cong.,  2nd  sess.,  p.  43  et  seq. 

*  No  attempt  will  be  made  to  undertake  an  exhaustive  study  of  citizenship  in  the 
municipal  law  of  the  United  States.  That  phase  of  the  subject  is  discussed  in  Morse, 
A.  P.,  A  treatise  on  citizenship,  Boston,  1881;  Van  Dyne,  F.,  Citizenship  of  the 
United  States,  Rochester,  1904;  Webster,  Prentiss,  A  treatise  on  the  law  of  citizen- 
ship in  the  United  States,  Albany,  1891;  Wise,  J.  S.,  A  treatise  on  American  citizen- 
ship, Northport,  L.  I.,  1906  and  in  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  W'ashington, 
1906. 

457 


458  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

Revised  Statutes,  and  in  the  Act  of  March  2,  1907,^  to  which  we  shall 
have  frequent  occasion  to  recur  in  discussing  the  various  classes  of 
persons  entitled  to  protection. 

Broadly  speaking,  there  are  three  categories  of  citizens  of  the  United 
States — those  who  have  acquired  citizenship  either  (1)  by  birth,  or 
(2)  1)3'  naturalization,  or  (3)  by  annexation  of  territory. 

Prior  to  the  Fourteenth  Amendment,  the  Constitution  of  the  United 
States  did  not  declare  who  were  and  who  were  not  citizens,  nor  did 
it  define  the  constituent  elements  of  citizenship.*  The  Fourteenth 
Amendment,  while  intended  primarily  for  the  negro  race,  has  in  fact 
conferred  citizenship  upon  persons  of  all  other  races,  "  born  or  natural- 
ized in  the  United  States  and  subject  to  the  jurisdiction  thereof."  ^ 
Citizenship  extends  also  to  the  foreign-born  children  of  American 
citizens,  with  the  limitation  that  the  rights  of  citizenship  shall  not  de- 
scend to  children  whose  fathers  have  never  resided  in  the  United  States.'* 

Naturalization  is  another  method  of  acquiring  citizenship,  and 
in  international  relations  gives  rise  to  many  difficult  problems.  The 
power  to  naturalize  foreign  subjects  was  expressly  granted  by  the  states 
to  the  federal  government,  and  as  early  as  1790  Congress  made  statu- 
tory provision  for  naturalization.  The  principal  legislation  on  the  sub- 
ject is  to  be  found  in  title  XXX  (§§  2165-2174),  and  §§  5395  and  5424- 
5429  of  the  Revised  Statutes,  and  in  the  Act  of  June  29,  1906,  as  sup- 
plemented by  the  Regulations  of  the  Department  of  Commerce  (34 
Stat.  L.  596).^     The  internationally  important  phases  of  naturaliza- 

'  34  Stat.  L.  1228. 

'  10  Op.  Atty.  Gen.  382. 

3  Fed.  Stat.  Annotated,  I,  785;  In  re  Rodriguez,  81  Fed.  Rep.  337,  353;  U.  S.  v. 
Wong  Kim  Ark  (1898),  169  U.  S.  649  (person  born  in  U.  S.  of  Chinese  parents). 
Strict  limitations,  however,  prevail  as  to  the  persons  capable  of  naturalization.  These 
persons  embrace  only  "white  persons"  and  persons  of  African  descent.  2  Stat.  L. 
153,  R.  S.,  §  2169;  Moore's  Dig.  Ill,  §  383;  Van  Dyne,  Naturalization,  Washington, 
1907,  40-53. 

'  R.  S.,  §  1993.  See  infra,  §  270;  Act  of  Mar.  2,  1907,  §§  5  and  6,  34  Stat.  L.  1229; 
and  Regulations  of  the  Dept.  of  State,  Apr.  19,  1907,  For.  Rel.,  1907,  p.  9. 

5  The  Act  of  June  29,  1906  repealed  §§  2165,  2167,  2168  and  2173  of  the  Revisetl 
Statutes.  We  cannot  here  undertake  a  study  of  naturalization  in  American  municipal 
law.  For  this  purpose,  reference  may  be  made  to  the  Fed.  Stat.  Annotated,  V,  p.  2(X) 
el  seq.,  and  to  the  Act  of  June  29,  1906;  to  "Naturalization  laws  and  regulations," 
published  at  frequent  intervals  by  the  Dept.  of  Labor,  Bureau  of  Naturalization 


AMERICAN-   CITIZENSHIP  459 

tion  and  particularly  its  relation  to  diplomatic  protection  abroad, 
will  be  discussed  in  the  course  of  the  present  Part  of  this  treatise. 

Besides  the  customary  method  of  naturalization  involving  a  declara- 
tion of  intention,  a  petition  for  naturalization,  a  fixed  period  (usually 
five  3''ears)  of  residence,  a  compliance  with  certain  quahfications  as 
to  age,  education,  and  moral  character,  the  renunciation  of  any  order 
of  nobility  or  hereditary  title  and  the  oath  of  allegiance  and  renuncia- 
tion of  prior  allegiance,  the  statutes  of  the  United  States  provide  for 
other  methods  of  acquiring  citizenship.  Thus,  children  who  are  minors 
at  the  time  of  their  parent's  naturalization  become  citizens  if  dwelling 
in  the  United  States.^  Alien  women  who  marry  American  citizens 
thereby  acquire  American  citizenship.-  An  honorably  discharged 
soldier,  of  age,  may  be  admitted  to  citizenship  upon  his  petition,  with- 
out any  declaration  of  intention,  on  proving  one  year's  prior  residence 
in  the  United  States.^  An  honorably  discharged  sailor  in  the  Navy, 
of  age,  may  be  admitted  to  citizenship  without  a  declaration  of  inten- 
tion, after  a  consecutive  service  of  five  years. ^  The  widow  and  minor 
children  of  an  alien  who  dies  after  declaring  his  intention  but  before 
becoming  naturalized  may,  by  complying  with  certain  provisions  of 
the  Act  of  June  29,  1906,  become  naturalized  without  making  a  dec- 
laration of  intention.^  Finally,  Congress  may  by  private  Act  admit 
an  ahen  to  citizenship.^ 

(latest  edition  dated  Dec.  19,  1914);  to  Van  Dyne,  F.,  A  treatise  on  the  law  of  nat- 
uralization of  the  U.  S.,  Washington,  1907;  to  Webster,  P.,  Law  of  naturalization  in 
the  U.  S.  and  of  other  countries,  Boston,  1895;  and  to  H.  Doc.  326,  59th  Cong.,  2nd 
sess.,  80  et  seq.  For  early  historj^  of  naturalization,  see  ibid.  8  et  seq.;  Moore's  Dig. 
Ill,  297  et  seq.;  and  to  Shear,  J.  C,  Syllabus-digest  of  decisions  under  the  law  of 
naturalization,  Sept.  1906  to  Aug.,  1913,  Collingswood,  1913. 

*  R.  S.,  §  2172.  As  to  what  is  "dwelling  in  the  U.  S.,"  see  In  re  Falagnano,  38 
Fed.  580,  In  re  Gayde,  113  Fed.  588,  and  Van  Dyne,  Naturalization,  82,  197  et 
seq.    But  see  In  re  Di  Sinione,  108  Fed.  942,  reversed  by  In  re  Gayde. 

-  R.  S.,  §  1994.    Section  4  of  the  Act  of  March  2,  1907;  Van  Dyne,  Naturalization, 
227  el  seq.    Infra,  §  264. 
»  R.  S.,  §  2166. 

*  Act  of  July  26,  1894,  28  Stat.  L.  124. 

5  Act  of  June  29,  1906,  §  4,  par.  6.  Section  2167,  R.  S.,  which  permitted  minor 
residents  under  certain  circumstances  to  dispense  with  the  declaration  of  intention 
has  been  repealed  by  the  Act  of  1906,  owing  to  the  many  frauds  perpetrated  under 
the  so-called  "minor's  clause." 

"  Act  of  Feb.  23,  1915,  admitting  to  citizenship  George  Edward  Lerrigo;  see  Hear- 


460  THE    DIPLOMATIC   PROTECTION    OF   CITIZENS    ABHOAD 

It  has  been  held  that  imperfect  or  defective  naturalization  cannot 
•confer  rights  to  American  citizenship  or  diplomatic  protection.^  The 
limited  passport  granted  by  the  Secretary  of  State  in  his  discretion 
to  those  who  have  declared  their  intention  to  become  citizens  and  who 
have  resided  three  years  in  the  United  States  may  be  considered  a 
slight  modification  of  this  principle.^ 

/ 
\    §  199.  Naturalized  Citizens  Abroad. 

Although  prior  to  1868  naturalized  citizens  of  the  United  States 
had  on  numerous  occasions  secured  the  active  diplomatic  interposition 
of  the  government  in  their  behalf  equally  with  native  citizens,  it  was 
not  until  the  Act  of  July  27,  1868  (15  Stat.  L.  224)  that  Congress  gave 
formal  legislative  expression  to  the  obligation  of  the  United  States 
to  extend  the  same  protection  abroad  to  naturalized  as  to  native  citi- 
zens.^ The  immediate  occasion  of  the  law  was  the  arrest  of  certain 
naturalized  citizens  by  the  authorities  of  their  parent  countries — 
which  adhered  to  the  doctrine  of  indefeasible  allegiance — for  non- 
performance of  military  service.^  The  United  States  has  experienced 
much  difficulty  and  in  some  cases  indeed  has  met  with  failure  in  ex- 
tending equal  protection  to  native  and  naturalized  citizens,  inasmuch 
as  the  views  and  attitude  of  foreign  governments  with  regard  to  ex- 
patriation and  the  obligations  of  their  former  subjects  and  citizens 
to  their  native  country  vary  greatly,  as  will  be  seen  hereafter.  While 
the  United  States  has  concluded  numerous  naturalization  treaties 
defining  the  status  of  naturahzed  citizens  of  a  particular  national 
origin,  on  their  return  to  their  native  countries,  the  unwiUingness 
of  many  countries  to  conclude  naturalization  treaties  has  made  im- 

iiigs  before  House  Committee  on  Immigration  and  Naturalization,  May  7  and  21, 
1914. 

'  For.  Rel.,  1887,  190  et  seq.;  For  Rel.,  1885,  849  et  seq.;  H.  Doc.  326,  .59th  Cong., 
2nd  eess.,  209. 

"■  Infra,  p.  501. 
I'hat  provision  of  the  Act,  now  embodied  in  §  2000  of  the  Revised  Statutes  reads: 
'All  naturalized  citizens  of  the  United  States,  while  in  foreign  countries,  are  entitled 
to  and  shall  receive  from  this  Government  the  same  protection  of  person  and  prop- 
erty which  is  accorded  to  native-born  citizens."    See  also  Morse  on  Citizenship,  §  134. 

*  See  a  brief  account  of  the  historical  and  political  setting  of  the  Act  in  S.  Doc,  326, 
^9th  Cong.,  2nd  sess.,  pp.  10-13. 


NATURALIZED    CITIZENS   ABROAD  461 

possible  of  complete  execution  the  legislation  of  Congress  looking  to 
the  equal  treatment  of  naturalized  American  citizens  everywhere. 
In  fact,  the  frequency  of  cases  in  which  naturalization  in  the  United  ^ 
States  w^as  obtained  merely  for  purposes  of  securing  American  protec- 
tion while  residing  more  or  less  permanently  abroad  led  Congress  in 
1906  and  in  1907  to  differentiate  between  native  and  naturalized  citi- 
zens by  providing,  among  other  things,  that  when  any  naturalized 
citizen  shall,  within  five  years  after  the  issuance  of  his  naturalization 
certificate,  take  permanent  residence  in  his  native  or  any  other  foreign 
state,  the  Department  of  Justice  may  institute  proceedings  to  cancel 
his  certificate,^  and  that  "when  any  naturalized  citizen  shall  have 
resided  for  two  years  in  the  foreign  state  from  which  he  came,  or  for 
five  years  in  any  other  foreign  state  it  shall  be  presumed  that  he  has 
ceased  to  be  an  American  citizen."  -  While  this  provision  merely 
raises  a  rebuttable  presumption,  having  effect  only  during  the  foreign 
residence  of  the  naturalized  citizen,  it  has  served  on  many  occasions 
to  relieve  the  United  States  from  the  duty  to  protect  this  type  of  un- 
desirable citizen.  Great  Britain  has  avoided  many  annoying  diplo- 
matic controversies  with  the  countries  to  which  her  naturalized  subjects 
originally  owed  allegiance  and  which  still  claim  it,  by  providing  that 
a  naturalized  and  a  natural-born  British  subject  shall  be  entitled  to 
the  same  rights  and  privileges,  "with  the  qualification,  that  [a  natu- 
ralized subject]  shall  not,  when  within  the  limits  of  the  foreign  state 
of  which  he  was  a  subject  previously  to  obtaining  his  certificate  of  natu- 
ralization, be  deemed  to  be  a  British  subject  unless  he  has  ceased  to 
be  a  subject  of  that  state  in  pursuance  of  the  laws  thereof  or  in  pursuance 
of  a  treaty  to  that  effect,"  ^  which  clause  is  printed  on  passports  issued 
to  naturalized  subjects. 

Strictly  speaking,  the  third  general  category  of  citizens,  namely, 
those  endowed  with  citizenship  by  reason  of  annexation  of  territory, 
constitute  a  special  class  of  naturalized  citizens.  Citizenship  thus 
conferred  may  be  called  collective  naturalization,  and  this  method 

»  Act  of  June  29,  1906,  §  15,  34  Stat.  L.  601. 

*  Act  of  Mar.  2,  1907,  §  2.  These  provisions  of  the  acts  of  1906  and  1907  will  be 
more  fully  examined  hereafter. 

'  The  Naturalization  Act,  1870,  §  7.  This  provision  is  omitted  from  the  British 
Nationahty  and  Status  of  Aliens  Act,  1914. 


\ 


462  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

is  exemplified  by  the  admission  of  new  states  into  the  Union,  or  by 
acquisition  of  territory  by  treaty,  purchase  or  conquest.^  This  last 
class  of  American  citizens  has  been  greatly  increased  recently  by  the 
acquisition  of  Porto  Rico  and  the  Philippines.  While  the  inhabitants 
of  these  insular  possessions  have  been  held  not  to  be  citizens  'in  the 
constitutional  sense  of  the  word,  they  are  American  nationals  in  the 
international  sense,^  and  as  such  entitled  to  the  protection  abroad  of 
the  United  States.^ 

§  200.  Citizenship  Usually  Essential  to  Protection. 

Citizenship  is  usually  an  essential  condition  of  diplomatic  protec- 
tion. In  the  matter  of  the  presentation  and  enforcement  of  inter- 
national claims,  no  rule  is  more  strictly  observed.  Thus,  protocols  for 
the  arbitration  of  general  claims  usually  provide  for  the  adjudication 
of  claims  on  the  part  of  corporations,  companies,  or  private  individuals, 
citizens  of  the  United  States,  against  the  other  government,  party  to 
the  arbitration.  International  commissions  and  the  Department  of 
State  have  on  many  occasions  laid  down  such  rules  as  the  following: '' 
a  claim  must  be  national  in  origin  and  at  the  time  of  presentation, 
and  continuously  national  in  ownership;  ^  the  direct  beneficiaries  of 
an  award  must  be  citizens;  ®  the  claim  of  a  foreigner  against  a  foreign 

*  See  the  discussion  of  judicial  determinations  of  these  questions  in  H.  Doc.  326, 
59th  Cong.,  2nd  sess.,  153-159  and  72.  On  collective  naturalization,  see  also  Moore's 
Dig.  Ill,  §§  379,  380;  Van  Dyne,  Naturalization,  265-332. 

^  Our  new  peoples;  citizens,  subjects,  nationals  or  aliens,  by  F.  R.  Coudert,  Jr., 
3  Columbia  L.  Rev.  (1903),  13-32;  American  citizenship  by  D.  O.  McGovney,  11 
Columbia  L.  Rev.  (1911),  231-250,  326-347;  Decisions  cited  in  H.  Doc.  326,  59th 
Cong.,  2nd  sess.,  72-73.  The  same  relation  between  the  constitutional  and  interna- 
tional aspects  of  nationality  arises  in  most  countries  possessing  colonial  dependencies. 
See  Sargent,  E.  B.,  British  citizenship,  London,  1912,  and  same  author  in  No.  31 
(July,  1914),  Journ.  of  the  Soc.  of  Comp.  Leg.  327-336. 

3  Circular  of  May  2,  1899,  For.  Rel.,  1900,  894;  Act  of  Apr.  12,  1900,  31  Stat.  L. 
77  (for  Porto  Rico),  Act  of  July  1,  1902,  32  Stat.  L.  692  (for  Philippines),  and  Act  of 
June  14,  1902,  32  Stat.  L.,  I,  386,  amending  §  4076,  R.  S.,  providing  for  protection 
and  issuance  of  passports  to  the  inhabitants  of  our  insular  possessions.  Moore's  Dig. 
Ill,  315-318,  874-878. 

*  These  rules  will  be  more  carefully  examined  hereafter. 

*  Infra,  §§  306  et  seq. 

'I.  e.,  under  the  general  form  of  protocol  above  mentioned.  See  Burthe  v.  Donifl, 
133  U.  S.  514,  reversing  Succession  of  de  Circ6,  41  La.  Ana.  506. 


OCCASIONAL    PROTECTION    OF   FOREIGNERS  463 

government  cannot  be  nationalized  by  assignment  to  an  American  citi- 
zen, or  by  the  naturalization  of  its  owner.  ^  Numerous  questions  of  citi- 
zenship which  have  had  to  be  determined  by  international  commissions 
and  the  Department  of  State  in  connection  with  claims  to  diplomatic 
protection  will  be  considered  in  this  Part  under  appropriate  sections.    , 

§  201.  Occasional  Protection  of  Foreigners. 

Notwithstanding  the  general  rule  so  strictly  enforced  by  claims 
commissions,  there  have  been  a  few  cases  in  which  foreigners  have 
received  awards  from  domestic  commissions.  Perhaps  the  most  famous 
of  these  cases  occurred  under  the  Acts  of  Congress  of  1874  and  1882 
establishing  the  first  and  second  court  of  commissioners  of  Alabama 
claims,  for  the  distribution  of  the  Geneva  award  paid  by  Great  Britain 
to  the  United  States.  The  Act  of  June  23,  1874  provided  (§  12)  that 
no  claims  should  be  allowed  ''arising  in  favor  of  any  person  not  entitled 
at  the  time  of  his  loss  to  the  protection  of  the  United  States  in  the 
premises."  Under  this  provision,  unnaturalized  foreigners,  except 
British  subjects,  who  were  excluded  on  special  grounds,^  were  permitted 
to  come  within  the  benefits  of  the  Act.  For  example,  aliens  shipping 
goods  on  American  vessels  during  the  rebellion,  or  employed  as  sea- 
men on  vessels  owned  and  registered  in  the  United  States  (except 
British  subjects)  were  held  to  be  entitled  to  "the  protection  of  the 
United  States."^  The  second  Alabama  Claims  court,  established  by 
the  Act  of  June  5,  1882,  held,  however,  that  the  protection  of  the 
United  States  extended  to  British  subjects  serving  on  American  ves- 
sels ^  and  to  the  American  owners  of  goods  shipped  on  a  British  vessel.-^ 
But  the  London  Lloyds  association  of  underwriters  were  held  not 
entitled  to  the  protection  of  the  United  States.^ 

» Infra,  §  306. 

2  Worth  V.  U.  S.,  Xo.  91,  Davis'  Report,  Washington,  1877,  p.  35. 

^  Davis'  Report,  105;  Rodocanochi  Sons  &  Co.  v.  U.  S.,  IMoore's  Arb.  2359;  Morse 
on  Citizenship,  §  178,  p.  218.  See  the  interesting  case  of  Schreiber  and  Meyer  v. 
V.  S.,  where  naturalization  of  a  German  in  British  East  India  was  held  only  qualified 
British  naturalization  and  hence  did  not  exclude  claimant  from  the  benefits  of  the 
Act.    Davis'  Rep.  105,  Moore's  Arb.  2350,  Morse,  §  178. 

*  Cassidy  v.  U.  S.,  No.  144,  Moore's  Arb.  4672. 

*  The  Pacific  Mills  v.  U.  S.,  Xo.  793,  class  2,  ibid.  4673. 
'  Bischoff  et  al.  v.  U.  S.,  No.  5693,  class  1,  ibid.  4672. 


464  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

Occasional  exceptions  to  the  rule  that  citizenship  is  an  essential 
condition  to  diplomatic  protection  have  been  made  in  cases  where 
a  foreigner  was  in  imminent  danger  or  placed  under  unusual  circum- 
stances requiring  diplomatic  assistance.  Some  of  these  exceptional 
cases  will  be  referred  to  briefly.  It  may  be  said,  however,  that  in 
rendering  assistance  to  the  citizens  or  subjects  of  a  foreign  government 
abroad  this  government,  generally  speaking,  can  only  instruct  its 
diplomatic  representatives  to  extend  their  personal  good  offices  in 
behalf  of  such  persons,  and  such  assistance  does  not  ordinarily  extend 
to  matters  in  connection  with  the  presentation  and  collection  of  claims 
against  foreign  governments.  When  such  an  individual  foreigner 
invokes  the  protection  of  an  American  diplomatic  or  consular  rep- 
resentative, the  consent  of  the  individual's  government  is,  if  possible, 
first  obtained  by  the  Department  of  State.  ^ 

After  the  war  with  Spain,  when  Spain  relinquished  her  sovereignty 
over  Cuba  and  before  the  Cubans  acquired  an  independent  status, 
the  United  States  undertook  to  protect  Cubans  temporarily  residing 
abroad  by  the  use  of  the  good  offices  of  its  representatives.^  It  fre- 
quently occurs  that  in  times  of  civil  disturbance,  especially  in  Latin- 
America,  the  United  States  diplomatic  and  consular  officers  extend 
protection  to  foreigners.  By  the  exercise  of  the  right  of  asylum,  pro- 
tection has  often  been  extended  to  natives  of  those  countries,  when 
political  refugees,  or  on  grounds  of  humanity.^  The  Department  of 
State  for  some  years,  however,  has  discouraged  the  practice  of  asylum, 
because  of  its  easy  abuse.  The  peculiarly  close  relations  of  the  United 
States  to  Panama,  Nicaragua  and  the  Dominican  RepubUc,  and  a 
general  desire  to  prevent  foreign  governments  from  taking  aggressive 
action  against  the  countries  of  Central  America  in  support  of  claims 
has  often  led  the  United  States  to  use  its  good  offices  to  adjust  pecun- 
iary demands  of  foreign  governments  upon  those  republics. 

In  the  protection  of  missionaries  in  Oriental  countries,  the  United 
States  has  avoided  the  example  of  France,  Russia,  Great  Britain  and 

*  Mr.  Sherman,  Sec'y  of  State,  to  Baron  von  Thielmann,  Mar.  10, 1897  (protection 
of  German  vessel  at  Martinique).    For.  Rel.,  1897,  p.  183.    See  infra,  §  204. 

'  See  circular  of  May  2,  1899,  For.  Rel.,  1900,  894  and  ita  application  to  various 
special  cases  as  set  forth  in  Moore's  Dig.  Ill,  295,  296. 

'  See  Leval,  op.  cit.,  §§  15-17. 


OCCASIONAL    PROTECTION   OF    FOREIGNERS  465 

Germany  of  extending  their  protection  not  only  to  their  subjects  but 
also  to  the  members  of  Christian  bodies  or  communities  of  the  faiths 
so  closely  identified  with  their  national  histor}'.  The  United  States 
has  followed  the  policy  of  extending  protection  to  American  citizens 
only,  or  to  American  interests  in  property  devoted  to  religious  purposes.' 
Where  American  missionaries  constitute  a  distinctive  American  com- 
munity in  an  extraterritorial  country,  citizenship  could,  until  1914, 
be  handed  down  from  father  to  son  without  restriction  as  to  those 
whose  fathers  had  never  resided  in  the  United  States.-  This  privilege 
did  not  however  extend  to  the  children  of  naturalized  citizens  beyond 
the  second  generation.^  By  a  circular  instruction  of  July  27,  1914, 
in  which  the  whole  matter  was  reconsidered,  it  was  ruled  by  the  De- 
partment of  State,  reversing  a  position  which  had  been  maintained 
since  1887,  that  the  exception,  in  the  case  of  extraterritorial  communi- 
ties, to  the  application  of  §  1993  of  the  Revised  Statutes,  b}'  which 
citizenship  had  been  held  inheritable  indefinitely  regardless  of  the 
residence  of  the  father  in  the  United  States,  was  altogether  unjustified, 
and  that  the  exception  should  be  abolished.^  The  occupation  as  a 
missionary  in  Turkey  or  China  serves  to  overcome  the  presumption 
of  expatriation  on  the  part  of  a  naturalized  citizen  leaving  the  United 
States  for  a  period  of  two  or  five  years,  respectively,  within  the  meaning 
of  §  2  of  the  Act  of  March  2,  1907.^ 

1  Mr.  Adee  to  Sister  Genevieve,  Sept.  10,  1895,  Moore's  Dig.  VI,  6.31;  Sec'y  Fre- 
linghuysen  to  Mr.  Gifford,  Dec.  19,  1884,  ibid.  639;  Sec'y  Cass  to  Mr.  Williams, 
Oct.  22,  1860,  ibid.  333  and  extracts  quoted  in  Moore's  Dig.  VI,  §  922;  Hinckley, 
F.  E.,  American  consular  jurisdiction  in  the  Orient,  Washington,  1906,  p.  108  et  seq.; 
H.  Doc.  326,  59th  Cong.,  2nd  sess.,  207,  208  and  reference  to  For.  Rel.,  1887,  p.  1094; 
1891,  p.  765;  1892,  p.  609;  1895,  II,  pp.  12.56,  1461,  cited  by  Hinckley,  p.  110.  Ar- 
ticle 14  of  the  treaty  of  1903  between  the  U.  S.  and  China  deals  with  the  rights  of 
American  missionaries  and  also  indicates  the  policy  of  the  U.  S.  A  useful  account 
of  the  protection  accorded  by  the  U.  S.  to  missionaries  abroad  is  presented  in  an 
article  by  J.  B.  Scott  in  6  A.  J.  I.  L.  (1912),  70-85.  A  Johns  Hopkins  doctor's  dis- 
sertation, Owens,  O.  L.,  The  protection  of  American  foreign  missionaries  by  the 
United  States,  is  announced  for  early  pubUcation. 

2  Thus  modifying  §  1993,  R.  S. 

3  Infra,  §  332. 

*  Special  Instruction  No.  340,  July  27,  1914,  with  annexed  opinion  of  Solicitor  in 
Lilienthal's  case. 

5  Circular  of  Dec.  11,  1907  (Turkey),  clause  (d);  Circular  of  May  13,  1908  (China), 
clause  (e).    Infra,  p.  707. 


166  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS   ABROAD 

Good  offices,  however,  have  on  numerous  occasions  been  extended 
to  protect  persons,  even  not  American  citizens,  from  religious  persecu- 
tion, especially  Christians  in  Turkey.^  Persecuted  native  teachers 
and  native  converts  have  occasionally  received  a  limited  protection 
and  the  treaties  of  Berlin  (1878)  and  of  1903  with  China  stipulate 
that  there  shall  be  no  discrimination  against  native  converts.^  On 
grounds  of  humanity,  the  United  States  has  at  various  times  expressed 
its  disapproval  of  or  conveyed  the  protests  of  American  public  opinion 
against  the  abhorrent  persecution  of  Jews  in  Morocco,  Russia  and 
Roumania.^  This  intercession  of  the  United  States  has  been  charac- 
terized in  its  expression  by  that  national  reserve  against  interference 
in  the  affairs  of  European  powers  which  may  be  considered  inherent 
in  our  foreign  polic3^  Only  when  the  direct  result  of  such  persecution 
was  to  cause  the  immigration  of  large  numbers  of  wretched  paupers 
into  the  United  States,  has  justification  been  found  for  a  more  vigorous 
remonstrance  against  the  persecution."* 

A  limited  protection  is  in  certain  cases  extended  to  persons  who 
have  not  yet  acquired  full  citizenship,  to  which  reference  will  be  made 
hereafter.  These  include  persons  who  have  resided  in  the  United  States 
for  three  years,  and  have  declared  their  intention  of  becoming  citizens, 
to  whom  the  Act  of  March  2,  1907  authorizes  the  issuance  of  passports 
valid  for  six  months.^  Awards  were  made  by  the  mixed  claims  commis- 
sion with  Mexico  under  the  protocol  of  July  4,  1868  to  a  free  American 
negro,  although  at  the  time  the  injury  occurred,  it  had  been  judicially 
held  that  the  claimant  was  not  an  American  citizen.^ 

'  Cases  cited  in  Moore's  Dig.  VI,  334-335. 

2  Infra,  p.  470. 

3  Moore's  Dig.  VI,  §§  923,  925  and  926. 

*  President  Harrison  in  Annual  Message,  Dec.  9, 1891,  For.  Rel.,  1891,  xii;  Mr.  Hay, 
Sec'y  of  .State,  to  Mr.  Wilson,  July  17,  1902,  For.  Rel.,  1902,  p.  910.  See  other  ex- 
tracts quoted  in  Moore's  Dig.  VI,  §§  925,  926. 

*  Infra,  p.  501.  See  also  French  protection  of  a  person  in  Haiti  who  had  not  yet 
acquired  full  French  nationality.  18  Clunet  (1891),  115.  Koszta's  case  may  btt 
noted  in  this  connection.    Infra,  §  250. 

6  Mathieu  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2461;  Howard's  case,  ibid. 
2462.  See  also  Aubry's  case  (France)  v.  U.  S.,  Jan.  15,  1880,  ibid.  2511  (as  to  free 
negroes  becoming  citizens  by  annexation  of  Louisiana).  The  American  Minister  in 
Mexico  had  in  1855  issued  a  circular  to  American  consuls  forbidding  them  to  extend 
protection  to  free  negroes  bori.  in  the  U.  S.    Sec'y  Marcy  had  however  declared  that 


PROTECTION  OF  FOREIGNERS  IN   "EXTRATERRITORIAL"   COUNTRIES      467 


PROTECTION    OF   FOREIGNERS   IN       EXTRATERRITORIAL       COUNTRIES 

§  202.  Extraterritorial  Protection  and  Jurisdiction. 

In  countries  in  which  the  United  States  exercises  extraterritorial 
jurisdiction,^  protection  is  not  strictly  confined  to  citizens  of  the  United 
States.  While  the  practice  varies  somewhat  in  different  countries,  e.  g., 
in  Turkey,-  Morocco,^  and  China,'^  it  contemplates  a  limited  protec- 
tion of  foreigners,  i.  e.,  persons  not  American  citizens,  and  in  many 
cases  of  certain  classes  of  natives.  In  this  connection,  diplomatic 
protection  by  way  of  good  offices  is  clearly  to  be  distinguished  from 
jurisdiction,  for  the  United  States  has  firmlj'^  denied  its  consuls  the 
right  to  entertain  jurisdiction  of  foreigners,  even  with  the  consent  of 
the  foreigner  and  of  the  local  government.^  Good  offices  are  often 
extended  to  foreigners  who  have  no  diplomatic  or  consular  representa- 
tive in  the  country  or  conveniently  near,  although  wherever  possible 
the  conditions  accompanying  delegated  protection,  namely,  the  con- 
sent of  the  foreigner's  national  government,  the  consul's  home  govern- 
ment and  of  the  local  government,  are  required.^    In  China,  however, 

protection  should  be  extended  to  them,  providing  they  were  free,  notwithstanding 
the  Dred  Scott  decision  which  held  them  not  to  be  citizens.  The  U.  S.-Mexican 
commission,  until  Thornton  became  Umpire,  also  made  awards  in  favor  of  persons 
who  were  either  only  domiciled  in  the  United  States  or  had,  in  addition,  declared 
their  intention  of  becoming  citizens.    Infra,  §  252. 

*  See  supra,  p.  433. 

*  Moore's  Dig.  II,  §  288;  Rey,  F.,  La  protection  diplomatique  .  .  .  dans  les 
^chelles  du  Levant,  Paris,  1899,  p.  244  et  seq.;  Brown,  Philip  IM.,  Foreigners  in  Tur- 
key, Princeton,  1914.  Turkey's  attempt  to  abrogate  the  Capitulations  has  already 
been  referred  to,  supra,  p.  431. 

3  Treaty  of  July  3,  1880,  Treaties  in  Force,  1904,  pp.  428-434,  especially  arts.  1,  7,  9, 
and  16,  Moore's  Dig.  II,  §  289;  Le  Boeuf,  Paul,  De  la  protection  diplomatique  et 
consulaire  des  indigenes  au  Maroc,  Bergerac,  1905. 

*  Hinckley,  pp.  85,  88.  See  HaU,  Foreign  powers  and  jurisdiction,  Oxford,  1894, 
pp.  136-139. 

'  See  Instructions  of  Secretaries  Fish  and  Gresham  reprintt,  J  in  Moore's  Dig.  II, 
597-599.  In  British  consular  courts,  the  consent  of  the  foreigner  sued  and  of  hie 
government  are  both  prerequisites  to  entertaining  jurisdiction.  Piggott,  Exterri- 
toriality (1907  ed.),  183-184.  As  to  proteges,  it  is  very  doubtful  whether  the  statutes 
of  the  United  States  authorize  the  assertion  of  criminal  jurisdiction  over  those  who 
are  not  American  citizens. 

"  Hinckley,  88  and  infra,  §  204.  France  and  Germany,  however,  appear  to  have 
exercised  exterritorial  jurisdiction  over  Swiss  citizens.     Hinckley,  89.     Under  the 


468  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

Russia  and  France  extend  wide  protection  to  the  subjects  of  non- 
treaty  powers,  a  practice  to  which  China  consents,  subject  to  the 
hmitation  that  protective  functions  shall  not  assume  the  form  of  juris- 
diction. The  theoretically  and  legally  correct  position  of  China  has 
at  times  been  violently  overturned  by  the  aggressive  attitude  of  certain 
powers.^ 

§  203.  Protege  System. 

This  protection  of  foreigners  extends,  within  its  limitations,  not 
only  to  subjects  of  the  countries  of  the  western  world,  but  has,  as  its 
distinctive  feature,  the  protection  of  certain  classes  of  natives.  These 
natives  are  generally  connected  in  some  official  capacity  with  the  con- 
sulates or  legations  of  the  United  States,  or,  in  China,  they  may  be 
employees  of  American  citizens.-  The  extent  of  protection  furnished 
these  persons,  generally  designated  as  proteges,  varies  somewhat 
in  the  different  extraterritorial  countries.  In  the  Ottoman  Empire, 
the  protege  system — both  as  to  foreign  and  native  proteges — was 
formerly  much  abused.  Foreigners  of  various  nationalities  and  large 
numbers  of  native  subjects  could,  by  merely  enrolling  their  names 
at  a  consulate,  receive  its  protection.^  This  so-called  doctrine  of  as- 
similation, which  prevailed  principally  in  the  Levant,  has  been  gradu- 
ally restricted  by  the  Ottoman  government,  with  the  cooperation  of 
the  foreign  powers,  in  which  effort  the  United  States  and  Great  Britain 
have  taken  a  prominent  part.  The  protection  of  native  proteges  is 
now  restricted  to  a  limited  number  of  dragomans,  guards  or  cavasses, 

convention  of  Nov.  7,  1899  for  the  submission  of  claims  growing  out  of  the  military 
action  of  American,  German  or  British  officers  in  Samoa,  it  was  agreed  that  either 
country  might,  with  the  consent  of  the  other,  submit  to  the  arbitrator  similar  claims 
of  other  persons  (not  Samoan  natives)  who  were  imder  its  "protection."  For.  Rel., 
1899,  p.  671. 

^  The  contentions  in  question  were  brought  to  the  attention  of  the  U.  S.  on  a  cer- 
tain occasion  in  1909,  For.  Rel.,  1909,  pp.  ()8-()9.  For  the  position  of  the  U.  S.  on 
this  matter,  declining  to  exercise  jurisdiction  over  the  subjects  of  non-treaty  Powers, 
see  Aide-Memoire  to  the  Russian  Embassy,  Oct.  11,  1910,  For.  Rel.,  1910,  838. 

2  For  protection  of  Chinese  employees  of  American  citizens,  see  For.  Rel.,  1900, 
pp.  394-402. 

3  Hinckley,  83;  Hall,  137;  Rey,  199  et  seq.;  Moore's  Dig.  II,  596;  H.  Doc.  326,  59th 
Cong.,  2nd  sess.,  206.  The  prot6g6  system  does  not,  as  such,  exist  in  China.  Koo, 
ch.  XII  and  XVIII. 


PROTfeofe   SYSTEM  469 

and  servants,  and  their  wives  and  minor  children,  so  long  as  they  are 
actuallj'  employed  in  the  service  of  the  consulate  or  legation.  It  is 
the  policy  of  the  United  States  to  limit  to  as  few  as  may  be  necessary 
the  persons  exempt  from  the  local  jurisdiction  by  reason  of  their  at- 
tachment to  legations  and  consulates  as  assistants,  guards  or  servants.^ 
This  appears  also  to  be  the  British  policy.^ 

In  China,  the  extent  of  protection  to  natives  is  usually  limited 
by  treaty.  The  Chinese  employee  of  a  citizen  or  subject  of  a  treaty 
power  in  the  Anglo-American  settlement  at  Shanghai  and  in  certain 
ports  of  China  may  not  be  arrested  without  notification  to  the  consul 
nor  be  tried  except  under  certain  formalities.^ 

In  Morocco,  the  practice  of  protection  is  regulated  by  the  treaty 
between  the  powers  and  Morocco  of  July  3,  1880,  to  which  treaty 
the  United  States  is  a  party. ^  By  this  convention  the  protected  persons, 
or  proteges,  are  divided  into  three  classes:  (1)  Native  employees  of 
legations  and  consulates;  (2)  native  factors,  brokers,  or  agents  (semsars) 
employed  by  foreign  merchants;  and  (3)  natives,  not  exceeding  twelve 
in  number,  who  have  rendered  signal  services  to  the  protecting  power. 

1  Hinckley,  85;  Consular  Regulations,  1896,  §  173.  No  passports  are  issued  to 
persons  thus  protected  but,  when  necessary,  certificates,  setting  forth  their  official 
positions.    Moore's  Dig.  II,  §  287. 

-  Hall,  137.  Under  its  former  policy  Great  Britain  is  still  constrained  to  extend 
protection  over  a  considerable  number  of  proteges.  Brook,  State  protection  of  sub- 
jects abroad,  Law  Mag.  and  Rev.  1905,  p.  171  (taken  largely  from  Hall). 

'  Hinckley,  85-86;  Moore's  Dig.  II,  599;  For.  Rel.,  1900,  394-402.  Claims  of 
Chinese  in  foreign  employment  killed  or  injured  in  the  performance  of  their  duties 
to  their  foreign  employers  were  presented  to  the  Chinese  Mixed  Claims  Commis- 
sion of  1912.  See  also  claims  of  legation  guards  killed  or  wounded  during  siege  of 
Peking,  Sec'y  of  State  Hay  to  Mr.  Conger,  Feb.  19,  1901,  For.  Rel.,  1901,  App.  362; 
and  claims  of  native  servants  in  Chang-Sha  riot  claims,  Mr.  Knox,  Sec'y  of  State, 
to  Mr.  Calhoun,  Oct.  22,  1910,  For.  Rel.,  1910,  352.  The  arrest  of  a  Chinese  em- 
ployee would  probably  be  objected  to  only  if  the  arrest  is  made  on  foreign  premises 
or  where  a  foreign  legal  or  business  interest  is  directly  affected.  The  Chinese  au- 
thorities, indeed,  have  at  times  contended  that  notification  to  the  consul  is  necessary 
only  when  the  arrest  is  made  on  foreign  premises. 

*  Treaties  in  force,  1904,  428-434;  Moore's  Dig.  II,  §  289.  Regulations  have  at 
times  been  framed  by  the  Dept.  of  State  for  the  guidance  of  American  consular 
officers.  See  Ass't  Sec'y  Porter  to  Mr.  Mathews,  Dec.  9,  1886,  119  MS.  Instruc- 
tions to  Consuls,  688.  The  claims  of  proteges  were  submitted  by  the  U.  S.  to  the 
Moroccan  Claims  Commission  of  1910.  A  brief  account  of  British  treaty  relations 
with  Morocco  is  given  in  37  Law  Mag.  and  Rev.  (Nov.  1911),  101. 


470  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

The  United  States  and  various  other  Powers  reserve  the  right  to  pass 
finally  upon  the  eligibility  of  these  proteges,  as  set  forth  in  the  lists 
furnished  annually  to  the  Sultan's  Minister  for  Foreign  Affairs  at  Tan- 
gier. Moreover,  the  foreign  Legations  have  never  recognized  the  claim 
of  the  Moroccan  government  of  the  right  or  necessity  to  sanction  these 
lists. ^  The  gradual  extension  of  French  influence  in  Morocco  may 
ultimately  bring  about  a  modification  of  the  protege  system. 

It  has  been  observed  that  the  United  States  discourages  the  proteg^ 
system,  and  protects  only  definite  classes  of  native  proteges  who  render 
service  to  American  representatives  or  interests.  With  regard  to 
missionaries,  this  government  likewise  follows  a  policy  of  confining 
its  diplomatic  protection  to  American  citizens,  differing  in  this  respect 
from  the  practice  of  some  of  the  more  important  countries  of  Europe, 
which  have  considered  themselves  obligated  to  defend  certain  great 
faiths  connected  with  their  national  history.  Some  measure  of  pro- 
tective surveillance  has  been  provided  for  native  converts  to  Chris- 
tianity, in  that  Turkey,  by  the  treaty  of  Berlin,^  and  China,  by  the 
treaties  of  1858  and  1903  with  the  United  States,^  are  under  obliga- 
tions not  to  discriminate  against  native  converts. 

The  status  of  American  citizens  and  their  descendants  who  reside 
permanently  in  American  communities  in  countries  in  which  the  United 
States  exercises  extraterritorial  powers  will  be  considered  hereafter.'' 
It  may  here  be  said  merely  that  the  rules  as  to  expatriation  and  the 
provisions  of  §  1993  of  the  Revised  Statutes  concerning  the  citizenship 
of  children  born  abroad  were,  until  recently,  held  by  the  Department 
of  State  as  not  applicable  to  the  descendants  of  native  American  citi- 
zens resident  in  such  distinctive  communities.^    By  virtue  of  the  right 


'  The  U.  S.,  however,  permits  the  Maghzen  to  register  his  objections  to  the  Usts 
of  proteges,  but  reserves  to  itself  the  right  to  examine  and  pass  upon  his  objections. 
As  to  the  hsts  furnished  in  Tunis,  see  39  Clunet  (1912),  277. 

2  Art.  LXXII,  Hinckley,  110. 

'Hinckley,  119,  121. 

'^  Infra,  §333.  Certain  other  topics,  such  as  dual  nationality,  married  women, 
naturalized  citizens,  in  so  far  as  they  are  related  to  extraterritorial  jurisdiction  will 
i)tt  discussed  at  more  ajjpropriate  places. 

*This  rule,  which  prevailed  from  1887  until  1914,  has  very  recently  been  changed, 
so  that  no  exception  is  made,  even  in  Turkey,  to  §  1993,  R.  S.    Special  Instructions 


DELEGATED  PROTECTION  471 

of  the  United  States  to  determine  when  it  will  extend  its  extraterri- 
torial protection,  it  has  been  decided  by  the  Department  of  State  that 
naturalized  citizens  in  extraterritorial  countries  are  practically  on  an 
equal  footing  with  naturalized  citizens  in  other  countries,  except  that 
the  conditions  necessary  to  overcome  the  presumption  of  expatriation, 
particularly  with  respect  to  missionaries,  are  somewhat  more  liberal.^ 

Seamen  serving  on  American  vessels,  regardless  of  their  nationality, 
are  considered  subject  to  the  extraterritorial  jurisdiction  of  the  United 
States,  and  entitled  to  its  protection.^  British  law  and  practice,  on 
the  other  hand,  merely  protect  all  seamen  on  British  vessels,  but  sea- 
men who  are  not  British  subjects  cannot  be  tried  by  a  British  consular 
court.  They  are  turned  over  to  the  consul  of  the  country  of  which  they 
are  nationals.^ 

DELEGATED   PROTECTION 

§  204.  Accompan5ring  Conditions. 

The  government  of  the  United  States  or  American  representatives 
abroad  have  from  time  to  time  been  called  upon  by  friendly  powers 
or  by  the  nationals  of  these  powers  abroad  to  extend  the  protection 
of  the  American  diplomatic  or  consular  officers  at  places  where  the 
friendly  power  had  no  official  representative.  Under  such  circum- 
stances, the  United  States  has  usually  authorized  its  representatives 
to  employ  their  good  offices  on  behalf  of  the  subjects  of  the  country 
making  the  request,  but  has  on  numerous  occasions  taken  pains  to 
make  it  clear  (1)  that  the  consul  or  minister  must  act  informally  and 
unofficially'-  onl}^;  ^  (2)  that  while  he  becomes  the  agent  of  the  foreign 

No.  340,  July  27,  1914,  Citizenship  of  children  born  of  American  fathers  who  have 
never  resided  in  the  United  States. 

1  Sec.  2  of  Act  of  March  2,  1907.  Circular  of  December  11,  1907,  Expatriation 
and  protection  of  Americans  in  Turkish  dominions.  Ibid,  as  to  China,  circular  of 
May  13,  1908,  infra,  p.  707. 

2  Hinckley,  87;  In  re  Ross,  140  U.  S.  453;  Koo,  Status  of  aliens  in  China,  New  York, 
1912,  pp.  199-200.  Some  countries,  e.  g.,  Denmark,  consider  the  jurisdiction  concur- 
rent, i.  e.,  the  national  consul  of  the  seaman  and  of  the  flag  of  the  vessel  have  con- 
current jurisdiction. 

»  Hall,  141-142;  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  206. 

*  In  one  case,  in  1871,  the  American  minister  at  Caracas  was  authorized,  with  the 
consent  of  Venezula  (which  was  granted),  to  present  certain  claims  of  Italian  subjects. 


472  THE   DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

government  in  behalf  of  whose  nationals  he  acts,  to  which  government 
he  is  responsible  for  the  discharge  of  his  duties,  he  is  not  its  official 
representative;  (3)  that  the  acquiescence  of  the  government  to  which 
the  agent  is  accredited  shall  be  a  necessary  condition  to  the  exercise 
of  his  delegated  authority;  and  (4)  that  whenever  the  exigencies  of  the 
situation  render  it  possible — which  is  always  the  case  where  the  re- 
quest proceeds  from  the  foreign  government  seeking  the  assistance — 
the  consent  of  his  own  government  and  of  the  alien's  government 
in  whose  behalf  he  acts  shall  be  first  obtained.^ 

The  question  has  been  raised  whether  the  local  government  must 
consent  to  the  exercise  of  such  delegated  or  substituted  authority.^ 
In  the  absence  of  abnormal  conditions  when  necessity  or  humanity 
requires  prompt  action  and  warrants  a  departure  from  strict  rules, 
it  is  believed  that  the  assent  of  the  local  government, — which  as  a 
rule  is  formally  given  upon  request — is  an  essential  condition.^ 

§  205.  Occasions  of  Exercise. 

Governments  request  another  government  to  act  for  them  in  the 
protection  of  their  nationals  (1)  when  they  have  no  treaty  relations 
with  or  when  the  number  of  their  subjects  in  a  certain  third  state  is 
too  small  to  warrant  having  an  official  representative  permanently 
there  resident,  or  (2)  when  they  have  broken  off  diplomatic  relations 

Moore's  Dig.  IV,  591.  Other  governments,  c.  g.,  Germany,  do  not  appear  to  limit 
their  exercise  of  delegated  protection  so  strictly.  The  United  States  has  on  several 
occasions  forbidden  its  diplomatic  officers  to  present  the  claims  of  foreigners  to  gov- 
ernments to  which  they  are  accredited,  without  specific  instructions.  When  per- 
mitted, the  act  is  usually  limited  merely  to  transmission  of  the  papers. 

"  Many  cases  of  delegated  protection  are  reviewed  or  extracts  from  the  correspond- 
ence quoted  in  Moore's  Dig.  IV,  §§  653-655.  See  Inst,  to  Dlpl.  officers  of  the  U.  S. 
(1897),  §  172;  Consular  Regulations,  1896,  §  174.  The  rule  is  well  expressed  by 
Act'g  Sec'y  Bacon  in  For.  Rel.,  1907,  pp.  583-584,  and  For.  Rel.,  1908,  pp.  210-211. 
See  especially  the  Department's  Circular  Instruction  of  August  17,  1914,  9  A.  J.  I.  L. 
(1915),  Supplement,  118-120. 

2  Tchernoff,  p.  386. 

3  When  the  United  States  in  1896  requested  of  Costa  Rica  permission  to  exercise 
good  offices  on  behalf  of  Chinese  subjects,  Costa  Rica  refused  assent  on  the  ground 
that  Chinese  immigration  is  prohibited  by  law.  For.  Rel.,  1896,  pp.  377-380.  See 
also  case  in  1867  when  Mexico  demurred  to  certain  U.  S.  representations  on  behalf 
of  French  and  Belgian  subjects.    Dipl.  Cor.,  1867,  II,  447. 


OCCASIONS    OF    EXERCISE  473 

with  the  third  state  and  have  withdrawn  their  official  representatives.^ 
Under  the  first  head,  the  United  States,  at  the  request  of  the  Swiss,^ 
Cuban,'  Chinese,''  British  ^  and  other  governments,®  has  on  different 
occasions  authorized  its  representatives  abroad  to  extend  their  good 
offices  to  nationals  of  those  states  in  various  countries,  particularly 
in  Central  and  South  America.  It  has  frequently  happened  that  in 
times  of  civil  disturbance  in  Latin-American  countries  the  United 
States  has  not  awaited  a  request  for  protection  from  European  or 
other  governments,  but  has  instructed  its  diplomatic  and  consular 
representatives  and  at  times  its  naval  officers  to  extend  temporary 
protection,  whenever  needed,  to  the  nationals  of  foreign  countries.^ 
British  official  representatives  have  frequently  protected  American 
interests  in  Turkey  and  other  places  in  the  Near  East.^ 

In  the  case  of  every  rupture  of  friendly  relations  between  two  powers, 
resulting  in  the  reciprocal  withdrawal  of  official  representatives,  the 
interests  of  the  respective  countries  in  the  other  state  are  turned  over 

»  Anzilotti  in  13  R.  G.  D.  I.  P.  (1906),  10.  Tchernoff,  383  et  seq.  The  matter  is 
sometimes  regulated  by  treaty  in  which  two  countries  agree  to  extend  their  protec- 
tion to  subjects  of  the  other  when  unrepresented  in  a  third  country,  e.  g.,  treaty 
between  France  and  Japan,  Sept.  14,  1909,  39  Clunet  (1912),  72-79  (patents,  trade- 
marks and  copyright).  Germany  undertakes  to  protect  subjects  of  Austria,  Switzer- 
land and  Luxemburg  in  countries  where  the  latter  have  no  representatives.  Laband, 
III,  31.  See  Pradier-Fodere,  III,  §  1373,  citing  several  treaties  concluded  between 
Latin-American  states. 

2  Circulars  of  Sec'y  of  State  Fish,  June  16,  1871,  For.  Pel..  1871,  p.  28;  Dec. 
15,  1871,  For.  Rel.,  1872,  p.  5;  Sec'y  Bayard  to  Mr.  Kloss,  July  1,  1887,  For.  Pel., 
1887,  p.  1077  and  other  notes  and  instructions  printed  in  Moore's  Dig.  IV,  §  654. 

3  Circular  of  Sec'y  of  State  Hay,  May  24,  1902,  For.  Pel.,  1902,  p.  6. 

Un  Guatemala,  For.  Rel.,  1894,  pp.  175,  331;  ibuL  1896,  pp.  377-380;  in  Nicar- 
agua and  Salvador,  ibid.  1897,  pp.  94-99,  425;  in  Panama,  ibid.  1902,  p.  318;  In  Chile 
and  Ecuador,  ibid.  1908,  p.  59.    See  also  other  volumes  of  For.  Rel.  since  1900. 

*  In  Bolivia,  For.  Pel.,  1902,  pp.  101-102,  528. 

*  Danish  interests  in  Salvador,  For.  Pel.,  1902,  p.  836.  As  to  U.  S.  protection  of 
foreigners  in  Greece  see  For.  Pel.,  1907,  pp.  583-584. 

'  See,  €.  g.,  Sec'y  Root  to  Minister  Furniss  (Haiti),  Dec.  5,  1908,  For.  Pel.,  1908, 
p.  442;  Belgian  interests  in  Haiti,  For.  Rel.,  1902,  p.  98;  Instructions  to  Mexico, 
1912-1914,  Dept.  of  State. 

«H.  Doc.  326,  59th  Cong.,  2nd  sess.,  208;  For.  Pel.,  1902,  521  (Bulgaria).  See 
also  the  arbitration  protocol  between  France  and  Haiti,  Sept.  10,  1913,  art.  1,  by 
which  France  undertook  to  present  claims  of  Ottoman  subjects  against  Haiti  to  a 
French-Haitian  tribunal.    8  A.  J.  I.  L.  (1914),  Supp   144,  145: 


474  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

to  the  representatives  of  a  third  state.  The  usual  conditions  of  dele- 
gated protection,  particularly  the  consent  of  all  three  states  to  the 
exercise  of  the  delegated  protective  functions,  must  be  fulfilled.  Pro- 
tection under  such  circumstances  is  always  a  delicate  duty,  because 
it  is  necessary  to  use  good  offices  on  behalf  of  enemy  subjects  and  yet 
maintain  a  strictly  neutral  position.  The  United  States  has  undertaken 
this  dut\''  on  several  occasions:  ^  on  behalf  of  various  European  powers 
in  Mexico  in  1867;  on  behalf  of  North  Germans,  and  the  subjects 
of  other  powers,  in  France,  during  the  Franco-Prussian  war;  on  be- 
half of  Chinese  and  Japanese  subjects,  in  Japan  and  China,  respec- 
tively, during  the  Chinese- Japanese  war;  on  behalf  of  Venezuela  in 
France  in  1895;^  on  behalf  of  Colombia  in  Venezuela  in  1901;^  on 
behalf  of  British  interests  in  South  Africa  in  1899;  ^  on  behalf  of 
Japan  in  Russia,  during  the  Russo-Japanese  war  in  1904;  ^  and  on 
behalf  of  France  in  Venezuela  and  of  Venezuela  in  France  in  1906.® 
During  the  Spanish-American  war,  the  United  States  confided  the 
protection  of  its  interests  in  Spanish  dominions  to  Great  Britain,  and 
Spain,  of  her  interests  in  the  United  States,  to  Austria-Hungary  and 
France.^  During  the  withdrawal  of  diplomatic  representatives  between 
the  United  States  and  Mexico  in  the  spring  of  1914,  the  United  States 
turned  over  the  protection  of  its  citizens  to  the  Brazilian  minister  in 
Mexico  City,  and  Mexico  confided  the  reciprocal  function  to  the  Spanish 
Ambassador  in  Washington.  Perhaps  the  most  widely  extended  em- 
ployment of  the  American  diplomatic  and  consular  service  for  the 
protection  of  foreign  interests  has  occurred  during  the  present  Euro- 
pean War,  when  practically  all  the  belligerents  confided  the  interests 
of  their  subjects  in  the  countries  of  the  other  belligerents  to  the  pro- 
tection of  the  United  States.^    In  such  cases  the  foreign  government 

1  See  cases  set  forth  in  Moore's  Dig.  IV,  §  655. 

2  Mr.   Uhl,   Act'g  Sec'y,   to    Mr.  Vignaud,   March   12,    1895,   For.   Rel.,   1895, 
424. 

5  For.  Rel.,  1901,  551-553. 

*  Mr.  Adee,  Act'g  Sec'y,  to  Mr.  Tower,  Oct.  13,  1899,  For.  Ilel.  1899,  350. 
» For.  Rel.,  1904,  pp.  430,  714. 

*  Mr.  Bacon,  Act'g  Sec'y,  to  Mr.  Russell,  Jan.  9,  1906,  For.  Rel.,  1906,  p.  1432, 
'  For.  Rel.,  1898,  785,  966;  Moore's  Dig.  IV,  611-614. 

*  By  Joint  Resolution  approved  Sept.  11, 1914,  Congress  appropriated  $1,000,000  to 


SEAMEN  475 

whose  nationals  have  profited  by  the  delegated  protection,  usually 
reimburses  the  protecting  government  for  the  expenses  incurred  in 
its  behalf. 

SEAMEN 

§  206.  American  Seamen.    Meaning  of  the  Term. 

A  class  of  persons  who  are  not  necessarily  citizens  of  the  United  States 
yet  who,  when  serving  on  American  vessels,  are  entitled  to  American 
protection,  are  seamen.  From  the  beginning  of  our  history,  liberal 
provisions  have  been  made  for  the  relief  and  protection  of  seamen, 
regardless  of  their  nationality,  when  serving  on  American  vessels. 
The  Consular  Regulations  provide  ^  that  the  term  "American  seamen" 
shall  be  held  to  include — 

"1.  Seamen,  being  citizens  of  the  United  States,  regularly  shipped 
in  an  American  vessel,  whether  in  a  port  of  the  United  States  or  in 
a  foreign  port  ; 

"  2.  Foreigners  regularly  shipped  in  an  American  vessel  in  a  port  of 
the  United  States;  ^ 

"3.  Seamen,  being  foreigners  bj^  birth,  regularlj^  shipped  in  an  Amer- 
ican vessel,  whether  in  a  port  of  the  United  States  or  a  foreign  port, 
who  have  declared  their  intention  in  a  competent  court  to  become 
citizens  of  the  United  States  and  have  serv-ed  three  years  thereafter 
on  American  merchant  vessels. " 

Section  2174  of  the  Revised  Statutes  enables  a  seaman  to  become 
naturalized  by  declaring  his  intention  to  become  a  citizen  and  sub- 


provide  for  the  expenses  "growing  out  of  its  representation  of  the  interests  of  foreign 
governments  and  their  nationals,  and  to  extend  temporarj^  assistance  to  other  govem- 
ncnts  and  their  nationals,  made  necessary  by  hostilities  in  Europe  and  elsewhere. " 
Pub.  Res.  48,  H.  J.  Res.,  337,  63rd  Cong.  See  the  detailed  instructions  in  the  De- 
partment's circular  of  August  17,  1914,  9  A.  J.  I.  L.  (1915),  Supplement,  118-120. 

1  §  199,  Consular  Regulations  of  1896.    See  also  Moore's  Dig.  Ill,  §  484. 

2  Matthews  v.  Offley,  3  Sumn.  115.  23  Op.  Atty.  Gen.  400,  403.  Cons.  Reg., 
1890,  §  201.  Such  foreigner  becomes  thereby  "a  seaman  of  the  U.  S.  within  the  mean- 
ing of  the  statutes  and  regulations  authorizing  the  relief  and  transportation,  at  gov- 
ernment expense,  of  destitute  seamen  to  the  U.  S."  Opinion  of  State  and  Treasurj^ 
Dept.,  For.  Rel.,  1888,  1648-1655.  The  statutes  for  protection  of  seamen  are  to 
be  found  in  R.  S.,  §§  4535-4591.  See  also  the  recent  Act  of  March  4,  1915,  Public 
No.  302,  an  Act  to  promote  the  welfare  of  American  seamen. 


470  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

sequently  serving  for  three  years  on  an  American  vessel.^  For  all 
purposes  of  American  protection,  it  is  provided  that  he  shall  be  deemed 
an  American  citizen  after  the  filing  of  his  declaration  of  intention.^ 
This  section  does  not  apply  to  seamen  serving  on  vessels  in  the  coast- 
wise trade.^ 

Mr.  Justice  Field  in  his  decision  in  the  celebrated  case  of  In  re  Ross, 
in  considering  the  status  of  an  alien  enlisting  on  an  American  ship, 
said: 

"By  such  enlistment  he  becomes  an  American  seaman — one  of  an 
American  crew  on  board  of  an  American  vessel — and  as  such  entitled 
to  the  protection  and  benefit  of  all  the  laws  passed  by  Congress  on  behalf 
of  American  seamen  and  subject  to  all  their  obligations  and  liabili- 
ties. .  .  .  He  could  then  insist  upon  treatment  as  an  American  citizen 
and  invoke  for  his  protection  all  the  power  of  the  United  States  which 
could  be  called  into  exercise  for  the  protection  of  seamen  who  were  native 
born."  4 

A  similar  rule,  to  the  effect  that  the  flag  protects  the  ship  and  every 
person  serving  thereon,  has  been  applied  by  claims  commissions.^ 
Both  courts  of  Alabama  claims  made  awards  to  aliens  serving  on 
American  vessels,  and  the  second  court  even  extended  this  protection 
to  British  subjects.^ 

'  Richelieu  (U.  S.)  v.  Spain,  Span.  Tr.  CI.  Comm.,  awarded  Richelieu,  a  native 
of  France  who  had  declared  his  intention  and  had  served  twenty  years  on  American 
merchant  vessels,  $5000  damages  for  his  arbitrary  arrest  and  imprisonment  by  Span- 
ish authorities  in  Cuba.  Van  Dyne,  Citizenship,  76.  Release  by  Great  Britain  of 
August  Piepenbrink,  who  had  declared  his  intention  and  served  iour  years  on  Amer- 
ican vessel.     Washington  Post,  Apr.  9,  1915. 

^  Section  2174  has  been  held  to  confer  citizenship  for  certain  purposes  only,  par- 
ticularly protection.  17  Op.  Atty.  Gen.  534;  21  Op.  Atty.  Gen.  412;  23  Op.  Atty, 
Gen.  400,  403. 

3  Act  of  June  9,  1874,  18  Stat.  L.  64. 

*  140  U.  S.  453,  472.  See  also  the  case  of  certain  Chinese  sailors  on  American 
vessels,  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Stevens,  Feb.  25,  1892,  For.  Rel.,  1892, 
343;  Moore's  Dig.  Ill,  797;  Cons.  Reg.  1896,  §  200. 

*  McCready  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2536.  Protocol  pro- 
vided for  jurisdiction  of  claims  of  "citizens"  of  the  U.  S.  v.  Mexico.  Umpire  Thorn- 
ton considered  the  service  on  an  American  vessel  a  presumption  of  citizenship,  final, 
"unless  .  .  .  the  contrary  be  expressly  proved." 

*  Cassidy  v.  U.  S.,  No.  144,  Moore's  Arb.  2380,  4672.  Supra,  p.  463.  The  first  court 
had  excluded  British  subjects  on  the  ground  that  they  were  not  entitled  to  U.  S. 
protection  as  against  Great  Britain.    Worth  v.  U.  S.,  No.  91,  Moore's  Arb.  2350. 


SEAMEN  477 

The  American  citizenship  which  enabled  the  Consular  Court  to 
assume  jurisdiction  over  a  British  subject  in  the  Ross  case  was  held  by 
Secretary  Bayard  not  to  attach  to  a  British  subject  permanently  on  land, 
although  he  had  previously  served  on  an  American  vessel.^  It  is  the 
flag  which  imports  nationality  for  the  purposes  of  protection. 

The  United  States,  in  submitting  the  claim  of  Shields,  a  British 
subject  serving  on  an  American  vessel,  to  the  Chilean  Claims  Com- 
mission under  the  treaty  of  Aug.  7,  1892,  endeavored  to  secure  by  an 
exchange  of  notes  an  understanding  that  Chile  would  not  object  to 
the  claim  on  the  ground  of  citizenship.  The  jurisdiction  of  the  com- 
mission being  limited  to  claims  of  "citizens,"  Shields'  claim  was  dis- 
missed on  demurrer,  but  the  Secretary  of  State  continued  his  efforts 
and  finally  secured  by  agreement  with  the  Chilean  minister  in  Wash- 
ington, an  indemnity  of  $3500,- 

A  foreign  seaman  belonging  to  an  American  vessel  who,  on  shore 
in  Haiti,  murdered  a  local  poUceman  was  held  not  entitled  to  the  pro- 
tection of  the  stipulations  of  United  States  treaties,^  Similarly,  the 
failure  to  have  declared  his  intention  to  become  a  citizen  was  held 
to  deprive  a  foreigner  belonging  to  an  American  vessel  of  the  protec- 
tion of  the  United  States.^  It  is  somewhat  difficult  to  reconcile  these 
conclusions  relating  to  the  protection  of  foreign  seamen  on  American 
vessels. 

In  the  case  of  foreign-built  vessels  flying  the  American  flag,  which 
trade  exclusively  in  foreign  waters,  the  crews  are  generally  made  up 
almost  entirely  of  foreigners,  who  have  not  acquired  the  character  of 
American  seamen,  "wnthin  the  meaning  of  the  law,  by  service  on  a 
registered  vessel  of  the  United  States,  When  they  ship  at  a  foreign 
port,  extra  wages  may  not  be  demanded  on  their  account,  nor  are 

» Mr,  Bayard,  Sec'y  of  State,  to  Mr,  Hubbard,  Nov.  10,  1888,  For.  Rel.,  1888,  II, 
1079. 

=  Shields  (U,  S.)  v.  Chile,  Aug.  7,  1892,  Moore's  Arb.  2557-2559;  For.  Rel.,  1891, 
217  el  seg.;  For,  Rel.,  1900,  66-71,  Shields  died  in  1895,  so  that  the  U.  S.  actually, 
after  1895,  prosecuted  a  British  claim. 

^  Mr.  Bayard,  Sec'y  of  State,  to  Mr,  Thompson,  July  31,  1885,  Moore's  Dig,  III, 
796, 

*  Mr,  Uhl,  Act'g  Sec'y  of  State  to  Messrs.  Goodrich,  Deady  and  Goodrich,  Apr.  10, 
1894,  For.  Rel.,  1895,  I,  229,  231. 


478  THE    DIPLOMATIC    PUOTECTION    Ol     e  1TIZEN6   ABROAD 

they  entitled  to  relief  as  destitute  American  seamen  under  the  laws 
providing  for  such  relief.  These  seamen  are  not  considered  under  the 
jurisdictional  cognizance  of  the  consul  as  to  their  contracts  of  shipment 
or  discharge.^  To  entitle  them  to  the  diplomatic  protection  of  the 
United  States  against  a  foreign  government  either  the  injury  com- 
plained against  must  have  been  sustained  while  actually  serving  under 
and  receiving  the  protection  of  the  American  flag  or  else  the  seamen 
must  have  complied  with  one  of  the  alternatives  of  §  2174  of  the  Revised 
Statutes. 

It  has  already  been  remarked  that  the  jurisdiction  of  American 
consular  courts  in  countries  in  which  the  United  States  exercises  ex- 
traterritorial privileges  extends  over  all  persons  duly  shipped  and 
enrolled  upon  the  articles  of  any  vessel  of  the  United  States,^  what- 
ever be  the  nationality  of  such  persons.^ 

VESSELS 

§  207.  Evidence  of  Nationality. 

The  flag  of  a  vessel  has  come  to  be  regarded  as  the  outward  symbol 
of  its  nationality,  of  which  it  is  prima  fade  evidence.'^  Each  country 
determines  for  itself  the  conditions  for  the  use  of  its  flag  upon  its  ves- 
sels, the  United  States  rule  being  that  vessels  bona  fide  owned  by  citi- 
zens of  the  United  States  are  entitled,  when  abroad,  to  carry  the  flag 
of  the  United  States  irrespective  of  the  papers  they  may  have  on  board. ^ 

The  ship's  papers  of  a  mere  international  character  and  value  ap- 
pear to  be  the  sea-letter,  passport,^  and  bill  of  sale.     The  passport 

1  Sec'y  Evarts'  Circular  to  consular  officers,  Feb.  18,  1880,  For.  Rel.,  1880, 1. 

2  As  to  what  are  "vessels  of  the  United  States,"  see  Moore's  Dig.  II,  §  324.  For 
purposes  of  protection,  the  term  is  not  confined  to  the  provisions  of  R.  S.,  §  4131. 

'  Supra,  p.  471.  Consular  Regulations,  1896,  §  629.  The  British  practice  is  some- 
what different.  Hall,  Foreign  powers  and  jurisdiction,  141,  See  also  Moore's  Dig. 
II,  §  261,  and  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  206. 

■•  Castillon  de  Tramont,  P.,  De  la  nationalite  des  navires,  Montauban,  Foresti^, 
1907;  Moore's  Dig.  II,  §321,  quoting  Calvo,  I,  §§426-428.  See  also  The  Vrow 
Elizabeth  (1803),  5  C.  Rob.  4;  The  William  Bagaley  (1866),  5  Wall.  377,  410;  Art.  57 
of  the  Declaration  of  London. 

6  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Tree,  Dec.  19,  1887,  For.  Rel.,  1888,  I,  28. 

"  For  a  full  discussion  of  the  maritime  passport  and  the  difference  between  a  pass- 
port and  sea-letter  see  Moore's  Dig,  II,  §  325. 


VESSELS  479 

or  the  sea-letter  is  the  formal  voucher  of  the  ship's  national  character. 
Lord  Stowell  said  that  "a  bill  of  sale  is  the  proper  title  to  which  the 
maritime  courts  of  all  countries  would  look."  ^ 

The  distinction  made  in  municipal  law  between  registered  and 
unregistered  vessels,^  i.  e.,  American-built  and  foreign-built  vessels, 
is  not  made  in  international  law,  and  both  classes,  if  owned  by  Amer- 
ican citizens,  are  equally  entitled  to  American  protection.  This  has 
been  reiterated  many  times  by  secretaries  of  State,  secretaries  of  the 
Treasury  and  Attorneys  General.'^  The  distinction  between  the  various 
classes  of  vessels  under  the  navigation  laws  of  the  United  States  is 
important  only  for  commercial  purposes,  registered  and  enrolled  vessels 
enjoying  certain  special  privileges.^  The  various  documents  issued 
to  such  vessels,  such  as  the  register,  enrollment  or  license  are  not  re- 
quired by  international  law  and  are  'prima  fade  evidence  only  of  owner- 
ship and  therefore  of  the  nationality  of  the  vessel.^ 

The  internationally  conclusive  character  of  a  certificate  of  Amer- 
ican registry  came  up  for  discussion  in  the  celebrated  Virginius  case.^ 
This  vessel  had  fraudulently  obtained  American  registry  by  the  fact 
that  the  American  citizen  in  whose  name  she  was  registered  made  a 

1  The  Sisters,  5  Rob.  155. 

2  As  to  the  vessels  entitled  to  registration  see  R.  S.,  §  4132,  as  amended  by  the 
Act  of  August  24,  1912,  37  Stat.  L.  562,  the  Act  of  May  10,  1892,  27  Stat.  L.  27, 
and  the  Act  of  August  18,  1914,  Public  No.  175,  63rd  Cong.,  2nd  sess.,  698.  Sec- 
tions 4133  and  4134,  R.  S.,  have  been  repealed.  The  statutory  provisions  governing 
registry  and  recording  are  to  be  found  in  R.  S.  §  4131  et  seq.,  7  Fed.  Stat.  Ann.,  p.  3 
el  seq.  The  general  effects  of  registry  and  the  position  of  foreign-built  but  American- 
owned  vessels  is  discussed  in  Moore's  Dig.  II,  §  322. 

3  Moore's  Dig.  II,  §  323. 

*  As  to  the  privileges  of  registered  and  the  disabilities  of  unregistered  vessels, 
see  Moore's  Dig.  II,  1031-1033. 

5  U.  S.  V.  Armistad,  15  Peters,  518;  6  Op.  Atty.  Gen.  649. 

«  Moore's  Dig.  II,  895  el  seq.,  967,  980-893  and  Wharton's  Dig.  Ill,  §  327,  pp.  147- 
159,  where  the  case  is  fully  discussed.  Attorney  General  Williams'  opinion  in  14 
Op.  Atty.  Gen.  340  is  supported  by  Wharton,  III,  §  409,  who  places  certificates  of 
naturalization  and  certificates  of  registration  of  a  vessel  on  the  same  footing,  namelj', 
that  their  validity  cannot  be  impeached  by  any  foreign  power,  except  by  applica- 
tion to  the  United  States,  which  is  the  sole  judge  of  their  validity.  It  is  of  course 
true  that  a  foreign  power  which  acts  on  its  assumption  that  an  American  document 
has  been  fraudulently  obtained  or  displayed,  by  a  direct  exercise  of  jurisdiction, 
assumes  a  grave  responsibility. 


480  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

false  oath  as  to  ownership,  which  in  fact  was  vested  in  certain  Cuban 
residents  of  New  York.  She  carried  a  hostile  expedition  to  Cuba, 
and  while  flying  the  American  flag,  was  seized  on  the  high  seas  by  a 
Spanish  war-vessel.  The  Attorney  General  held  that  notwithstanding 
her  false  registry,  she  was  exempt  from  interference  on  the  high  seas 
by  any  foreign  power.  Spain  had  seized  the  vessel  in  self-defense, 
and  the  United  States  in  effect  admitted  the  right  of  Spain  to  question 
the  validity  of  her  registry  by  undertaking  to  dispense  with  any  salute 
to  the  American  flag  if  it  were  proved  that  she  sailed  under  a  false 
register  and  was  not  legally  entitled  to  fly  the  American  flag.^  The 
better  opinion,  therefore,  would  seem  to  be  that  a  register  or  any  other 
document  of  nationality  or  even  the  flag  is  only  a  prima  fade  and  not 
an  internationally  conclusive  evidence  of  nationality,"  although  for 
belligerent  purposes,  "subject  to  the  provisions  respecting  transfer 
to  another  flag,  the  neutral  or  enemy  character  of  a  vessel  is  deter- 
mined by  the  flag  which  she  is  entitled  to  fly."  ^  For  a  foreign  power 
in  time  of  peace  to  arrest  on  the  high  seas  a  vessel  carrying  the  United 
States  flag  involves  a  grave  responsibility,  and  in  fact  practically 
the  only  circumstance  under  which  such  arrest  has  been  excused  is 
where  there  was  probable  cause  to  believe  that  the  flag  had  been  as- 
sumed for  piratical  purposes.^  The  question  of  proving  the  nationality 
of  vessels  in  the  absence  of  papers  has  frequently  been  before  the 
United  States  courts  in  cases  of  piracy.^ 

§  208.  American  Ownership  the  Test  of  Title  to  Protection. 

The  employment  of  an  American  vessel  in  the  internal  trade  of  a 

^  This  implied  admission  would  probably  not  have  been  made  to  any  third  coun- 
try.   It  will  be  recalled  that  the  Virginius  was  owned  by  Cubans,  Spanish  subjects. 

^  Woolsey,  International  law,  §  214,  quoted  in  Moore's  Dig.  II,  981.  Article  XI  of 
the  treaty  of  July  3,  1902  between  the  U.  S.  and  Spain,  however,  provides  that 
"All  vessels  sailing  under  the  flag  of  the  U.  S.  and  furnished  with  such  papers  as 
their  laws  require,  shall  be  regarded  in  Spain  as  U.  S.  vessels,"  and  the  reciprocal 
provision  applies  to  Spanish  vessels  in  the  U.  S. 

'  Article  57  of  the  Declaration  of  London.  The  rules  respecting  transfer  of  flag 
have  be(.n  referred  to,  supra,  p.  255. 

'  Wharton's  Dig.  Ill,  §  408. 

s  E.  g.,  U.  S.  V.  Jones  (1813),  3  Wash.  C.  C.  209.  See  also  decisions  under  the 
Mutiny  Act  of  1835  and  under  the  revenue  laws  and  recording  acts. 


AMERICAN   OWNERSHIP   THE   TEST   OF   TITLE   TO    PROTECTION         481 

foreign  country  will  subject  it  to  the  laws  of  that  country  and  will 
suspend  the  privileges  attaching  to  its  American  registry  during  the 
period  of  its  foreign  employment.^  But  even  when  operating  under 
a  foreign  coasting  license,  if  owned  by  American  citizens  and  sailing 
under  the  American  flag,  protection  will  be  extended  against  unjust 
treatment,  notwithstanding  the  foreign  domicil  of  its  owners.^ 

The  fact  that  ownership  alone  and  not  registry  or  flag  is  the  criterion 
of  title  to  American  protection  is  illustrated  in  the  case  of  the  Alliance, 
where  an  American  citizen  fraudulently  registered  his  vessel  in  the 
name  of  a  Dominican  in  order  to  take  advantage  of  Dominican  coast- 
ing trade  laws.  She  carried  the  Dominican  flag.  Yet  the  Arbitral 
Commission  of  1903  adjudicating  claims  of  the  United  States  against 
Venezuela  held  that  the  register  being  prima  facie  evidence  of  owner- 
ship only,  the  actual  ownership  of  the  vessel  could  be  proved  Uke  any 
other  fact,  and  inasmuch  as  she  was  owned  by  an  American  citizen, 
she  possessed  all  the  rights  of  American  property.^ 

Another  proof  of  the  fact  that  American  ownership  of  a  vessel  is 
the  final  criterion  of  its  right  to  fly  the  American  flag  and  of  its  title 
to  American  protection  is  clearly  shown  by  the  many  cases  of  foreign- 
built  vessels  (navigating  exclusively  in  foreign  waters)  which  are 
owned  by  citizens  of  the  United  States.  Numerous  vessels  of  this 
character  trade  in  the  Far  and  Near  East  and  in  other  parts  of  the 
world. ^  These  vessels  cannot  be  registered,  and  they  are  under  nu- 
merous commercial  disabilities  under  the  navigation  laws  of  the  United 
States,  but  if  purchased  of  foreign  owners  and  owned  by  citizens  of 

'  Mr.  Seward,  Sec'y  of  State,  in  Instructions  printed  in  Moore's  Dig.  II,  1071- 
1072.  See  as  to  the  application  of  a  Honduranean  navigation  law  to  foreign  vessels, 
correspondence  in  For.  Rel.,  1909,  p.  366  et  seq. 

-  Infra,  p.  482.    See,  however,  infra,  p.  695. 

'  The  Alliance  (U.  S.)  v.  Venezuela,  Feb.  17,  1903  (Bainbridge,  U.  S.,  for  the 
Commission),  Ralston  29,  31,  citing  U.  S.  v.  Pirates,  5  Wheat.  184  and  U.  S.  v. 
Amedy,  11  Wheat.  409.  See  Wharton's  Dig,  III,  §410.  Yet  where  a  certain  bark 
flying  the  Hawaiian  flag,  but  actually  owned  by  an  American  citizen,  was  arrested 
for  smugghng  opium,  the  U.  S.  representative  declined  to  intervene.  Mr.  Comly  to 
Sec'y  Evarts,  Dec.  22,  1879,  For.  Rel.,  1880,  592. 

*  On  the  right  of  protection  of  American-owned  foreign-built  vessels  see  the  elab- 
orate opinions  and  Instructions  set  forth  in  Moore's  Dig.  II,  §  323,  and  Wharton,  III, 
§410. 


482  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

the  United  States,  whether  purchased  of  beUigerents  or  neutrals  during 
a  war  to  which  the  United  States  is  not  a  party,  or  in  time  of  peace, 
they  are  entitled  to  the  protection  and  flag  of  the  United  States  as 
the  property  of  an  American  citizen,  provided,  however,  that  the 
purchase  shall  have  been  made  in  good  faith.  ^  Even  a  foreign  cap- 
tain of  such  a  vessel  would  seem  to  enjoy  American  protection  ^  and 
United  States  consuls  abroad  appear  to  have  the  same  jurisdiction 
over  the  vessel  and  its  equipment  as  in  the  case  of  any  documented 
vessel  of  the  United  States.^ 

As  will  be  seen  hereafter,  the  United  States  often  protects  foreign  cor- 
porations, the  greater  part  of  whose  stock  is  held  by  American  citizens. 
In  a  recent  case  in  which  the  Department  of  State  was  requested  to 
extend  protection  to  a  vessel,  flying  the  Mexican  flag,  owned  by  a 
Mexican  corporation  the  bulk  of  whose  stock,  it  was  alleged,  was 
held  by  American  citizens,  the  Department  informed  the  American 
citizens  that  while  there  was  some  precedent  which  warranted  the 
United  States  in  extending  protection  to  the  corporation,  no  protec- 
tion could  be  given  to  the  vessel  flying  the  Mexican  flag. 

For  belligerent  purposes,  the  rule  is  practically  uniform  that  the  na- 
tionality of  a  corporation  oAvning  a  vessel  is  that  of  the  state  under  whose 
laws  it  is  incorporated  and  whose  flag  the  vessel  flies,  regardless  of  the 
nationality  of  the  stockholders."* 

*  Article  XX  of  the  Consular  Regulations,  1896,  and  the  Treasury  Regulations 
contain  detailed  provisions  as  to  the  sale  and  transfer  of  these  undocumented  vessels, 
the  consul's  responsibility  as  to  the  good  faith  of  the  transaction  (§  344,  Cons.  Reg.), 
and  the  record  of  the  bill  of  sale,  certificate  to  be  issued,  etc.  (§  343  Cons.  Reg.). 
Sections  341-349  of  the  Consular  Regulations  are  printed  in  Moore's  Dig.  II,  1038- 
1041.    See  as  to  good  faith  of  purchase,  For.  Rel.,  1879,  180. 

*  But  where  the  captain  of  a  vessel  in  Turkey  was  an  Ottoman  subject  (The 
Nevada)  the  Department  of  State  was  of  the  opinion  that  it  would  not  be  warranted 
in  withholding  him  from  Turkish  jurisdiction,  nor  in  presenting  a  claim  on  his  behalf 
to  the  Turkish  government.  The  same  rule  governed  the  claims  of  Turkish  officers 
serving  on  the  vessel.  But  where  the  Captain  was  a  national  of  a  third  state  (Greece) 
the  U.  S.  protected  him  against  the  assumption  of  jurisdiction  by  Turkey.  The 
Texas  v.  Turkey,  1913-1914. 

'  Moore's  Dig.  II,  1045.  The  fiction  that  a  vessel  constitutes  in  contemplation  of 
law  an  extension  of  the  territory  of  the  country  of  its  flag  is  ably  discussed  by  West- 
lake,  I,  175.    See  Field  ?».  U.  S.,  27  Ct.  CI.  224. 

*  See  cases  set  forth  in  article  by  Russell  T.  Mount  in  15  Columbia  L.  Rev.  (1915), 


PROPER   USE    OF    FLAG  483 

The  principle  that  the  citizenship  of  the  actual  owner  of  a  vessel 
is  the  test  of  title  to  national  protection  is  somewhat  affected  in  time 
of  war  for  purposes  of  prize  law  by  the  doctrine  of  trade  domicil  as 
conferring  national  character.^  But  the  neutral  nationality  of  a  vessel 
as  determined  by  its  flag  is  not  lost  by  the  fact  that  when  captured 
it  is  under  time  charter  to  a  subject  of  the  enemy. ^ 

It  has  been  held  on  several  occasions  that  the  flag  covers  the  cargo, 
and  that  the  American  shippers  or  owners  of  cargo  on  a  foreign  vessel 
or  its  charterers  must  look  to  the  country  of  the  flag  for  protection.^ 
The  United  States  has  nevertheless  presented  claims  on  the  part  of 
American  shippers  of  cargo  on  or  charterers  of  a  foreign  vessel  which 
was  wrongfully  captured  and  condemned  in  a  foreign  prize  court.  ^  If 
such  American  citizens  were  not  thus  protected,  they  might  find  them- 
selves without  any  national  protection,  for  the  vessel  is  not  bound, 
and  by  lack  of  knowledge  as  to  ownership  and  conditions,  is  not  gen- 
erally in  a  position,  to  make  claim  for  captured  cargo.  When  ship 
and  cargo,  in  the  case  of  a  vessel  wrongfully  captured  or  condemned, 
are  owned  by  nationals  of  different  countries,  it  is  not  unusual  for 
their  governments  to  make  joint  diplomatic  representations. 

§  209.  Proper  Use  of  Flag. 

Prize  courts  carefully  examine  into  the  legitimacy  of  the  transfer 

332-333.  See  also  Continental  Tyre  and  Rubber  Co.  v.  Daimler  (1915),  1  K.  B. 
893,  and  J.  E.  Hogg  in  31  Law  Quar.  Rev.  (191.5),  170-172. 

1  Infra,  §  245.    Ferrer  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2721  (dictum). 

^  The  Thea,  Hurst  &  Bray,  Russian  &  Japanese  Prize  Cases,  I,  96,  108. 

3  Mr.  Bacon,  Act'g  Sec'y  of  State,  to  Mr.  Furniss,  Nov.  28,  1908,  For.  Rel.,  1908, 
p.  440;  Mr.  Olney,  Sec'y  of  State,  to  Mr.  Reymershoffer,  Oct.  24,  1896,  Moore's 
Dig.  II,  1003;  Ferrer  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2721  (under  terms 
of  art.  16  of  the  treaty  of  1831).  But  in  the  Nevada  (U.  S.)  v.  Turkey,  the  U.  S. 
declined  to  present  a  claim  on  behalf  of  a  Portuguese,  Mr.  Zouros,  owner  of  cargo 
on  this  American  vessel,  and  a  similar  rule  was  followed  in  the  case  of  the  foreign- 
owned  cargo  on  the  American  ship  William  P.  Frye,  sunk  by  the  German  cruiser 
Prinz  Eild  Friedrich  in  Jan.  1915. 

^  S.  S.  Arabia  (U.  S.)  v.  Russia,  For.  Rel.,  1904  and  1905  and  later  correspondence; 
S.  S.  Oldhamia  v.  Russia,  U.  S.  correspondence,  1910,  Pari.  Pap.  Misc.  No.  1  (1912), 
Cd.  6011;  S.  S.  Anliope  (U.  S.)  v.  Japan,  1912-13.  The  first  was  a  German,  the 
two  latter  British  vessels.  The  fact  that  American  merchants  shipped  their  goods 
on  British  vessels  during  the  Civil  War  was  held  not  to  disentitle  them  to  the  pro- 
tection of  the  United  States.    (The  Pacific  Mills  v.  U.  S.,  No.  793,  Moore's  Arb.  4673.) 


484  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

of  enemy  vessels  to  subjects  or  the  flag  of  neutral  states  either  shortly 
before  or  during  war.  Before  the  Declaration  of  London,  which  has 
been  ratified  by  but  few  of  the  signatories,  the  practice  of  maritime 
powers  differed  greatly.  According  to  Anglo-American  practice  such 
a  transfer  to  a  neutral  flag  was  recognized  as  valid,  provided:  (1)  it 
was  bona  fide,  (2)  "was  not  effected  in  a  blockaded  port  or  while  the 
vessel  was  in  transitu,^'  (3)  the  vendor  did  not  retain  an  interest  in 
the  vessel  or  did  not  stipulate  a  right  to  recover  or  repurchase  the 
vessel  after  the  conclusion  of  the  war,  and  (4)  "the  transfer  was  not 
made  in  transitu  in  contemplation  of  war."  *  According  to  the  French 
and  Russian  practice,  a  transfer  of  flag  effected  after  the  outbreak 
of  war  is  considered  illegal,  and  not  merely  presumed  to  be  invalid.- 
The  Declaration  of  London  in  articles  55  and  56,  provides  a  series 
of  rules  with  a  view  to  furnish  presumptions  and  criteria  as  to  the 
legitimacy  of  the  transfer.^ 

The  courts  of  Alabama  claims  held  that  a  colorable  transfer  of  an 
American  vessel  to  the  British  flag,  in  order  to  rescue  her  from  the 
hands  of  the  captors,  did  not  forfeit  the  protection  of  the  United  States.'^ 

Every  country  has  a  great  interest  in  the  proper  use  of  its  national 
flag  abroad,  both  on  vessels  and  elsewhere.  The  United  States  has 
on  more  than  one  occasion  successfully  protested  to  foreign  countries 
against  the  abusive  display  of  the  American  flag  on  property  or  vessels 
not  American,  and  on  its  own  part  has  endeavored  to  prevent  every 
improper  use  of  the  flag.**  The  government  may  of  course  decline 
to  protect  a  vessel  wrongfully  flying  the  American  flag.^ 

A  vessel  of  the  United  States  may  forfeit  its  right  to  American  pro- 
tection by  entering  into  the  service  of  a  foreign  power  as  an  auxiliary 

'  Oppenheim,  II,  §  91,  p.  118.  This  question  is  concisely  presented  by  Oppenheirn, 
with  the  decisions  in  support  and  the  provisions  of  the  Declaration  of  London. 

-  A  good  collection  of  prize  cases  in  which  the  question  of  transfer  of  flag  was 
involved,  is  presented  in  Russell  T.  Mount's  article  in  15  Colunnbia  L.  Rev.  (1915), 
327-333.    Supra,  p.  255.    See  also  J.  W.  Garner  in  49  Amer.  L.  Rev.  (1915),  321-348. 

'  The  details  are  set  forth  in  Oppenheim,  II,  §  91  and  in  the  works  by  Bentwich 
and  Cohen  on  the  Declaration  of  London. 

*  Tyler  v.  U.  S.,  No.  4438,  class  1,  Moore's  Arb.  4673. 

^  Moore's  Dig.  II,  135-138. 

» Case  of  the  Itala,  Mr.  Gibbs  to  Sec'y  Evarts,  Mar.  19,  1879,  For.  Rel.,  1879, 
861. 


PROPER   USE    OF    FLAG  485 

to  military  or  naval  operations.^  So  the  acceptance  of  a  privateering 
commission  from  a  foreign  country  by  an  American  citizen  and  the 
display  of  the  foreign  flag  on  his  vessel  will  serve  to  deprive  him  of 
American  protection  for  all  purposes  connected  with  the  privateering 
expedition  in  which  he  is  engaged.^  Any  violation  of  the  neutrality 
laws  of  the  United  States  or  of  his  neutrality  as  an  American  citizen, 
may  operate  to  deprive  an  American  citizen  of  his  right  to  American 
protection.^ 

'  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Basaett,  Sept.  15,  1869,  Moore's  Dig.  II,  107.3. 
2  Medea  and  Good  Return  (U.  S.)  v.  Ecuador,  Nov.  25,  1862,  Moore'a  Arb.  2736. 
'  Infra,  §  358  et  seq. 


CHAPTER  n 

PROOF  AND  EVIDENCE  OF  CITIZENSHIP 

§  210.  By  Whom  Determined. 

It  is  asserted  as  a  principle  that  among  the  attributes  of  sovereignty 
is  the  right  of  a  government  to  determine  the  conditions  and  quahfi- 
cations  of  citizenship  and  to  decide  who  shall  be  deemed  citizens.^ 
The  United  States  has  denied  the  right  of  a  foreign  government  to 
impeach  the  documentary  evidence  of  citizenship  furnished  to  an 
American  citizen  by  this  government,  but  it  has  admitted  the  right 
of  a  foreign  government  to  traverse  the  evidence  of  the  passport  by 
showing  fraud  in  its  procurement  or  illegal  naturalization  or  forfeiture 
of  the  right  to  protection.^  However,  the  final  determination  of  the 
validity  of  the  citizenship  is  reserved  exclusively  for  the  United  States.^ 

There  has  been  some  expression  of  opinion  in  the  Department  of. 
State  to  the  effect  that  the  presentation  of  a  claim,  on  behalf  of  a 
claimant  alleged  to  be  an  American  citizen,  to  an  international  com- 
mission, should  preclude  all  examination  by  the  commission  into  the 
citizenship  of  the  claimant,^  on  the  ground  that  the  Department's 
determination  should  be  considered  final.  International  commis- 
sions, however,  have  freely  assumed  the  right  to  pass  upon  the  citizen- 
ship of  a  claimant,  testing  it  in  first  instance  by  the  municipal  law  of 

1  Wilson  (U.  S.)  !'.  Chile,  Aug.  7,  1892,  Moore's  Arb.  2554;  Mr.  Gresham,  Sec'y 
of  State,  to  Mr.  Tripp,  Sept.  4,  1893,  For.  Rel.,  1893,  23-24.    Supra,  p.  7. 

-  Mr.  Adec,  Act'g  Sec'y  of  State,  to  Mr.  Lee,  Aug.  13,  1907,  For.  Rel.,  1907,  II, 
589-590;  Mr.  Uhl  to  Mr.  Hengelmiiller,  May  8,  1895,  For.  Rel,  1895,  I,  10. 

3  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  McLane,  Feb.  15, 1888,  For.  Rel.,  1888, 1,  511. 

*  Sec'y  Blaine  appears  also  to  have  taken  this  view.  Mr.  Blaine  to  Mr.  Durant, 
August  22,  1881,  MS.  Dom.  Let.,  Van  Dyne,  Citizenship,  107.  Several  Solicitors 
and  Assistant  Solicitors  appear  to  have  supported  Mr.  Blaine's  view.  Prof.  Basde- 
vant  criticizes  some  of  the  decisions  of  the  Venezuelan  Arbitrations  of  1903  in  which 
the  Umpire  denied  the  right  of  a  claimant  to  the  citizenship  of  the  country  which 
supported  his  claim.  5  R.  D.  I.  Priv6  (1909),  41-63,  particularly  the  Corvaia  case 
(Italy),  p.  45,  and  the  Flutie  case  (U.  S.),  p.  48. 

486 


BY    WHOM    DETERMINED  487 

the  claimant's  country.^  For  example,  when  Sir  Edward  Thornton 
became  umpire  of  the  mixed  claims  commission  between  the  United 
States  and  Mexico  under  the  treaty  of  July  4,  1868,  he  acted  on  the 
principle  that  the  term  "citizenship"  in  the  convention  meant  citizen- 
ship according  to  the  law  of  the  contracting  parties,  and  declined  to 
recognize  a  declaration  of  intention  or  domicil,  singly  or  together,  as 
conferring  citizenship, - 

In  the  protocols  for  the  submission  of  claims  to  arbitration,  it  is 
occasional^  provided  that  the  defendant  country  may  contest  the 
validity  of  the  citizenship  of  the  claimant.^  The  frequent  occurrence 
of  cases  of  dual  nationality,^  by  which  a  claimant,  owing  to  a  conflict 
of  laws,  becomes  a  citizen  of  both  the  claimant  and  the  defendant 
country  according  to  the  municipal  law  of  each,  has  resulted  in  a  general 
preference  by  international  commissions  in  favor  of  the  law  of  the  de- 
fendant country,  so  as  to  preclude  the  possibility  of  a  country  being 
made  a  defendant  to  an  international  claim  by  a  person  who  by  its 
municipal  law  is  considered  its  own  citizen.  In  a  few  cases,  international 
commissions  have  essayed  to  determine  a  claimant's  citizenship  by 
rules  of  international  law,  rather  than  by  the  municipal  law  of  either 
the  claimant  or  defendant  country,  as,  for  example,  in  cases  where 
trade  domicil  has  been  held  to  confer  nationality  for  international 
purposes.  ^ 

»  Ancira,  Attorney  (Mexico),  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2453;  De  Acosta 
y  Foster  (U.  S.)  v.  Spain,  Feb.  12,  1871,  ibid.  2462.  As  we  shall  see,  certificates 
of  naturalization  have  been  frequently  impeached  by  claims  commissions.  Infra, 
§226. 

'^Zamacona,  Me.xican  commissioner,  acted  on  the  same  principle.  Moore's  Arb. 
2720. 

'  Protocol  of  Feb.  12,  1871,  between  U.  S.  and  Spain,  Art.  5,  Malloy's  Treaties 
and  conventions,  II,  1663.  A  protocol  added  to  the  convention  of  Nov.  1,  1895,  for 
the  settlement  of  British  claims  against  Nicaragua,  provides  "that  Her  Majesty's 
Government  will  not  support  the  claim  of  any  person  before  the  commission  unless 
they  consider  him  to  be  a  British  subject,  and  on  their  part  the  Nicaraguan  Govern 
ment  wiU  accept  such  status  as  duly  estabUshed,  subject  to  the  production  of  proof 
that  the  claimant  is  not  entitled  to  it,  in  contemplation  of  English  Law."  For.  Rel., 
1896,  307. 

^  §  253  et  seq. 

5  See,  e.  g.,  Laiirent  (Gt.  Brit.)  v.  U.  S.,  Feb.  8,  1853,  Moore's  Arb.  2675  and  infra, 
§§  245,  246. 


488  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

PROOF  OF    CITIZENSHIP 

§  211.  Methods  of  Proof. 

Citizenship  being  ordinarily  an  essential  condition  of  protection, 
it  will  be  of  interest  to  examine  the  various  methods  by  which  citizen- 
ship may  be  proved.  A  passport,  for  example,  as  one  of  the  most 
usual  evidences  of  citizenship,  is  in  its  terms  a  statement  that  the 
holder  is  a  citizen  of  the  United  States.  The  Department  of  State, 
therefore,  requires  an  applicant  for  a  passport  clearly  to  establish 
his  citizenship.^ 

The  principal  methods  of  proving  American  citizenship  are  by  evi- 
dence of  birth  or  of  naturalization  in  the  United  States.  Birth  is 
usually  proved  by  affidavit,  and  international  commissions  generally 
accept  this  as  sufficient  in  the  absence  of  dispute  or  suspicious 
circumstances."  Birth  certificates,  duly  authenticated  by  the  states 
issuing  them,  are  accepted  by  the  Department  of  State  as  evidence 
of  American  citizenship.  Unfortunately,  there  are  still  many  states 
which  have  no  adequate  birth  registration  laws.  In  the  circular  in- 
struction of  April  19,  1907,  providing  for  the  registration  in  consu- 
lates abroad  of  women,  the  widows  or  divorced  wives  of  aliens  or  of 
American  citizens,  who  desire  to  resume  or  retain  American  citizen- 
ship, as  the  case  may  be,  it  is  prescribed  that  if  the  woman  is  a  native 
citizen,  documentary  evidence  of  such  citizenship  need  not  be  re- 
quired unless  the  consul  entertains  doubts  as  to  the  statements  made 
to  him,  in  which  case  a  certificate  of  birth  or  the  affidavit  of  a  credible 
witness  known  to  him  may  be  demanded. 

The  best  evidence  of  naturalization  is  the  judicial  record  of  naturali- 

^  As  will  be  seen,  however,  it  is  not  obligatory  to  issue  a  passport  to  every  citizen 
who  desires  it,  so  that  the  rejection  of  an  application  is  not  necessarily  a  denial  by 
the  Department  or  its  agents  of  the  American  citizenship  of  the  person  whose  applica- 
tion is  rejected. 

2  Wilkinson  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2532.  But  in  Suarcz 
(U.  S.)  II.  Mexico,  ibid.  2449,  the  oath  as  to  birth  and  certificate  of  baptism  were 
held  by  Thornton,  as  insufficient  proof,  on  the  ground  that  identity  of  claimant 
with  child  baptized  was  not  proved.  In  Barco  and  Garate  (U.  S.)  v.  Mexico,  ibid. 
2449,  he  held  that  birth  in  U.  S.  of  alien  parents,  followed  by  departure  from  U,  S. 
while  under  age,  did  not  establish  U.  S.  citizenship.  This  appears  clearly  a  mistake 
of  law,  at  least  according  to  U.  S.  municipal  law. 


PROOF   OF   CITIZENSHIP  489 

zation  or  an  exemplified  copy  thereof.  Naturalization  may  be  proved 
by  parol  evidence  only  in  case  the  record  has  been  lost  or  destroyed.^ 

A  passport  issued  by  the  Department  of  State  has  been  held  by 
municipal  courts  as  incompetent  judicial  proof  of  citizenship,-  but, 
as  will  be  noted,  internationally,  the  United  States  has  insisted  upon 
its  passport  being  accepted  as  prima  facie  evidence  of  citizenship.'' 

When  satisfactory  evidence  is  furnished  that  the  record  has  be- 
come lost,  destroyed  or  mutilated  or  could  not  for  good  and  suffi- 
cient reasons  be  found,  it  has  been  held  that  secondary  evidence  to 
prove  naturalization  will  be  admitted."*  Municipal  courts  have  on 
several  occasions  construed  the  facts  of  long  residence  in  the  United 
States  and  the  exercise  of  the  voting  privilege  as  tending  to  show  nat- 
uralization and  citizenship.^  International  commissions  have  not  been 
so  liberal.^ 

As  the  judicial  branch  of  the  government  is  charged  with  the  duty 
of  naturaUzing  aliens  and  is  invested  with  appropriate  powers  for 
determining  matters  of  fact  which  are  essential  to  decide  the  question 
of  naturalization,  the  Department  of  State  has  uniformly  held  that 
it  is  beyond  its  power  to  assert  that  a  certain  person  is  a  naturalized 
citizen  of  the  United  States  in  the  absence  of  judicial  proof  of  the 
fact.^  Thus  where  a  record  of  naturalization  has  been  lost  or  destroyed, 
it  is  for  the  courts  to  hear  the  evidence  of  the  loss  and  remedy  it.^ 

It  has  been  uniformly  held  that  proof  of  a  declaration  of  intention 
is  not  sufficient  evidence  of  naturalization.^ 

'  Green  v.  Salas,  31  Fed.  Rep.  10(3.  See  other  cases  in  municipal  courts  cited  in 
Moore's  Dig.  Ill,  §§  420,  421,  in  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  127-130,  and  in 
Van  Dyne,  Naturalization,  129-133. 

-In  re  Gee  Hop,  71  Fed.  Rep.  274;  Urtetiqui  v.  D'Arcy,  9  Peters,  692;  Edsell  v. 
Mark,  179  Fed.  Rep.  292. 

'  Infra,  p.  517. 

^  Mantin  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2540;  Steinthal,  ibid.  2540; 
Wolfe,  ihul.  2539;  Van  Dyne,  Naturalization,  132;  Moore's  Dig.  Ill,  §421.  The 
Department  of  State  occasionally  accepts  secondary  evidence. 

*  See  cases  cited  in  Moore's  Dig.  Ill,  497-498, 
« Infra,  p.  491. 

'  See  communications  of  Sec'y  of  State  Blaine  printed  in  Moore's  Dig.  Ill,  498. 

*  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Ferguson,  ibid.  498.  For  purposes  of  protec- 
tion, the  Department  occasionally  accepts  secondary  evidence. 

» Infra,  §  247. 


490  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

§  212.  Rules  of  International  Tribunals  of  Arbitration. 

International  commissions  acting  under  special  treaties  or  rules 
of  their  own  often  provide  for  special  methods  of  establishing  citizen- 
ship, and  have  had  occasion  to  pass  upon  various  forms  of  evidence 
of  citizenship.  In  each  case,  it  is  important  to  consult  the  treaty 
or  protocol  of  arbitration  under  which  the  commission  is  acting.  The 
domestic  commission  under  the  convention  with  France  of  July  4, 
1831  held  that  the  executive  determination  of  the  fact  of  citizenship 
did  not  authorize  the  commission  to  deny  the  privileges  of  citizen- 
ship to  an  American  who  had  neither  renounced  them  in  terms,  nor 
by  assuming  a  hostile  attitude  towards  a  foreign  nation,  had  author- 
ized that  nation  to  treat  him  as  its  enemy.  ^ 

The  claims  commission  under  the  treaty  of  July  4,  1868  with  Mexico, 
passing  upon  the  claims  of  citizens  of  either  country  against  the  other, 
issued  an  order  which  required  native  citizens  to  state  the  place  and 
date  of  their  birth.  Various  forms  of  evidence  of  citizenship  were 
presented  to  this  commission,  which  resulted  in  some  interesting  deci- 
sions concerning  proof  of  naturalization  and  citizenship.  For  example, 
a  certificate  from  the  Governor  of  a  Mexican  State  attesting  claimant's 
citizenship,  supported  by  other  evidence,  was  accepted  as  proof  of 
citizenship,^  but  certificates  executed  by  minor  officials  were  rejected."* 
Similarly,  recognition  of  citizenship  by  a  consul  or  a  certificate  from 
a  consul,*  or  aid  furnished  by  the  American  minister,^  were  held  each 
as  insufficient  evidence  of  citizenship. 

'  Kane's  notes,  Phila.  1836,  p.  16. 

2  Garay  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  2532. 

^  Warner  (Mexico)  v.  U.  S.,  ibid.  2533  (sub-political  chief  of  a  Mexican  district); 
Wolfe  (U.  S.)  V.  Mexico,  ibid.  2539  (passport  and  certificate  from  a  Mexican  colonel 
of  infantry).  Of  course,  claimant's  declarations,  supported  only  by  persons  inter- 
ested in  the  claim,  were  rejected  as  proof.  Spencer  (U.  S.)  v.  Mexico,  ibid.  2768 
(note).  To  effect  that  opinions  of  witnesses  are  incompetent  to  prove  citizenship, 
see  Valentiner  (Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  564. 

'  Brockway  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2534;  Goldbeck  (U.  S.)  v.  Mexico, 
iM.  2507.    See  also  Gilmore  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  ibid.  2539. 

^  Tipton  (U.  S.)  V.  Mexico,  July  4,  1868,  ibid.  2545.  But  such  official  recognition 
by  several  U.  S.  ministers  and  the  minister  of  foreign  affairs  combined  with  cir- 
cumstantial evidence  of  naturalization  and  direct  evidence  of  a  declaration  of  in- 
tention was  considered  by  Thornton,  Umpire,  as  proof  of  claimant's  citizenship. 
Pradel  (U.  S.)  v.  Mexico,  ibid.  2543.    Recognition  of  claimant's  American  citizen- 


RULES    OF    INTERNATIONAL   TRIBUNALS    OF   ARBITRATION  491 

Service  of  a  claimant  in  the  Mexican  navy  was  regarded  as  a  method 
of  electing  Mexican  citizenship,  in  view  of  a  Mexican  law  which  con- 
sidered such  service  as  a  form  of  naturalization.^  But  service  in  the 
United  States  military  forces,  while  requiring  an  oath  of  allegiance 
during  the  term  of  service,  did  not  entitle  a  claimant  to  appear  as  an 
American  citizen.-  In  the  absence  of  proof  to  the  contrary,  service 
on  an  American  merchant  vessel  was  held  to  create  a  presumption 
of  American  citizenship.^ 

The  mere  exercise  of  the  voting  privilege  in  a  state  has  been  held  by 
international  commissions  neither  to  confer  American  citizenship,'*  nor  to 
deprive  a  foreigner  of  his  alienage.^ 

Enrollment  in  the  register  of  a  Spanish  consulate  in  Venezuela, 
it  appearing  that  such  registration  was  only  granted  after  proof  of 
Spanish  nationality',  was  accepted  by  the  umpire  of  an  international 
commission  as  prima  facie  evidence  of  Spanish  nationality.^ 

The  United  States-Mexican  commission  of  1868,  before  Thornton 
became  umpire,  also  held  that  a  declaration  of  intention,  together 
with  an  established  domicil  in  the  United  States,  made  claimant  a 
citizen  within  the  meaning  of  the  protocol  conferring  jurisdiction  over 
claims  of  "citizens"  of  the  United  States.^ 

ship  by  Mexican  and  U.  S.  authorities  obviated  the  non-production  of  naturalization 
papers  in  Remer  et  al.  (U.  S.)  v.  Mexico,  Act  of  Mar.  3,  1849,  ibid.  3343. 

1  Martin  (U.  S.)  v,  Mexico,  ibid.  2467,  and  other  cases  there  cited.  But  an  artisan 
repairing  gun  carriages  was  held  not  in  the  military  service.  Cole  (U.  S.)  v.  Mexico, 
ibid.  2468. 

-  Pagliari  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2468.  So  held  as  to  service  of 
foreigner  in  the  U.  S.  merchant  marine.  Shields  (U.  S.)  v.  Chile,  Aug.  7,  1892, 
ibid.  2.557.    But  see  supra,  p.  477. 

'  McCready  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2537. 

*  Gatter  (U.  S.)  v.  Mexico,  Odd.  2547  (even  if  accompanied  by  twenty  years'  resi- 
dence).   Pugos  (U.  S.)  V.  Mexico,  ibid.  2548.    See  also  Gerrard's  case,  43  Ct.  CI.  67. 

5  Sharpe  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2548,  Hale's  Rep.  15. 
But  proof  of  claimant's  having  voted  as  an  American  citizen  was  held  to  cast  doubt 
on  his  Mexican  citizenship,  and  to  offer  a  presumption  against  his  Mexican  citizen- 
ship which  must  be  rebutted.  Barrios  (Mexico)  v.  U.  S.,  July  4,  1868,  ibid.  253'). 
See  also  the  still  stronger  cases  of  Schaben  (U.  S.)  v.  Mexico,  ibid.  2541,  and  Cabazoa 
(Mexico)  V.  U.  S.,  ibid.  2543,  Lieber,  Umpire. 

«  Esteves  (Spain)  v.  Venezuela,  April  2,  1903,  Ralston,  922. 

^  Wadsworth,  U.  S.  commissioner,  and  Lieber,  umpire,  in  Sprotto  (U.  S.)  v.  Me.xico, 
Moore's  Arb.  2717.     But  Thornton,  when  he  became  umpire,  declined  to  follow 


492  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

The  effect  of  a  provision  of  the  Mexican  constitution  of  1857,  ac- 
cording to  which  foreigners  became  Mexican  citizens  by  the  purchase 
of  real  estate  in  Mexico,  unless  a  contrary  intention  were  expressly 
manifested,  was  construed  in  a  number  of  cases  coming  before  the 
mixed  claims  commission  under  the  treaty  of  July  4,  1868.  The  pro- 
/ision  was  held  merely  permissive  and  designed  to  confer  a  benefit, 
making  Mexican  citizenship  optional  with  the  alien,  and  not  obligatory 
and  intended  to  impose  a  disability,  so  as  to  force  Mexican  citizenship 
upon  an  alien.  ^  Nor  did  the  purchase  of  land  in  territory  not  open  to 
alien  purchase  serve  to  prove  citizenship.^  But  a  request  for  permission 
to  become  a  Mexican  citizen  in  order  to  purchase  land  in  a  frontier 
state,  followed  by  such  purchase,  was  held  a  proof  of  citizenship.^ 

A  claim  to  American  citizenship  by  reason  of  the  annexation  of 
territory  was  held  to  require  for  its  support  proof  of  citizenship  or 
residence  in  the  territory  annexed.^ 

EVIDENCE    OF   CITIZENSHIP 

§  213.  Classes  of  Documentary  Evidence. 

The  customary  documentary  evidences  of  American  citizenship 
having  an  international  value  are  the  passport,  the  certificate  of  natural- 
ization, and  the  certificate  of  registration  issued  under  paragraph  172 
of  the  Consular  Regulations.^  Of  these  three  certificates,  the  passport 
is  the  most  important  for  international  purposes,  and  its  relation 
to  diplomatic  protection  abroad  warrants  special  and  detailed  ex- 
amination. 

this   and   similar  decisions.    Wilkinson   (U.  S.)  v.  Mexico,  ibid.  2720  and   infra, 
p.  575. 

*  See  Mr.  Ashton's  argument  printed  in  Moore's  Arb.  2468-2477.  Anderson  and 
Thompson  (U.  S.)  v.  Mexico,  ibid.  2479  and  2482.  Same  rule,  notwithstanding 
claimant's  intention  to  reside  permanently  in  Mexico  (Elliott  v.  Mexico,  ibid.  2481), 
and  long  residence  in  Mexico  (Bowen  v.  Mexico,  ibid.  2482).  See  also  Robert  v. 
Mexico,  ibid.  2477,  where  American  citizenship  was  expressly  preserved  and  recog- 
nized. 

^  Morton  (U.  S.)  v.  Mexico,  ibid.  2477.  (Lieber  held  that  it  merely  showed  the 
purchase  to  have  been  void.) 

3  Prim  (U.  S.)  v.  Mexico,  ibid.  2482. 

*  Masson  (U.  S.)  v.  Mexico,  ibid.  2542;  Vallejo  (U.  S.)  v.  Mexico,  ibid.  2534. 

'  See  circular  instruction,  April  19,  1907,  Registration  of  American  Citizens,  For. 
Rel.,  1907,  I,  6. 


RELATION    OF   PASSPORT   TO    DIPLOMATIC    PROTECTION  493 

THE    PASSPORT 

§  214.  Nature  and  Purpose  of  Passport  System. 

The  issuing  of  passports  is  a  convenient  system  adopted  by  states 
to  secure  for  their  citizens  a  right  of  transit  through  foreign  countries, 
which  permission  might  in  international  legal  theory  be  withheld. 
Technically,  the  foreign  country  grants  the  citizen  the  passport,  and 
accepts  his  certificate  of  citizenship  as  a  title  to  the  right,  accorded 
by  all  civilized  states,  of  unobjectionable  foreigners  to  pass  through. 
In  those  countries  which  even  in  time  of  peace  exercise  strict  super- 
vision over  aliens  entering  and  residing,  the  local  or  national  vise  on 
the  certificate  corresponds  to  the  technical  passport.  In  practice, 
the  certificate  itself  has  received  the  name  passport  and  actually  serves 
that  purpose,  being  often,  if  not  unregulated  by  foreign  officials,  at 
least  only  inspected,  the  vise,  where  it  is  affixed,  serving  merely  as 
evidence  of  inspection. 

The  passport  is  the  accepted  international  certificate  or  evidence 
of  citizenship,  although  its  evidentiary  value  is  -prima  facie  only.  In 
the  practice  of  the  United  States,  it  is  issued  by  the  Secretary  of  State 
or  under  his  authority  by  a  diplomatic  or  consular  officer.  It  certi- 
fies that  the  person  therein  described  is  a  citizen  of  the  United  States 
and  requests  for  him  while  abroad  permission  to  come  and  go  as  well 
as  lawful  aid  and  protection.^ 

§  215.  Relation  of  Passport  to  Diplomatic  Protection. 

The  passport  is  a  'prima  facie,  though  not  a  final,  warrant  of  dip- 
lomatic protection.     Possession  of  a  passport  does  not  always  carry 

'  The  American  passport,  its  history  and  a  digest  of  laws,  rulings  and  regulations 
governing  its  issuance  by  the  Department  of  State,  by  Gaillard  Hunt.  Washington, 
1898,  p.  4;  IMoore's  Dig.  Ill,  S5G.  jMr.  Hunt's  work,  the  American  passport,  gives 
a  full  history,  with  forms,  circulars  and  rules  and  regulations  bearing  on  the  issuance 
of  the  passport  by  the  Dept.  of  State.  Prof.  Moore's  chapter  on  passports  (XII), 
Digest,  III,  pp.  855-1022  contains  a  valuable  account,  illustrated  by  diplomatic 
notes,  of  the  practice  of  the  Dept.  of  State  and  of  foreign  countries  in  regard  to  the 
United  States  passport.  The  rules  of  1907,  and  the  amended  rules  of  1914—1915, 
entailed  by  the  problems  incidental  to  the  European  War,  are  not,  of  course,  noticed, 
the  work  having  been  published  in  1906.  A  less  systematic  collection  of  notes  and 
instructions  of  secretaries  of  State  and  diplomatic  officers  is  contained  in  WTiarton's 
Digest,  2nd  ed.,  II,  §§  191-195.  On  the  EngUsh  passport,  see  an  article  by  N.  W. 
Sibley  in  7  Joum.  of  the  Soc.  of  Comp.  Leg.  (1904-05),  26-33. 


494  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

a  guaranty  of  protection,  nor  does  the  refusal  to  issue  one  indicate 
a  definite  forfeiture  or  withdrawal  of  protection.  The  passport  is 
issued  under  statutory  authority  (Revised  Statutes,  §§  4075,  4076), 
and  while  it  has  been  held  by  the  Attorney  General  that  its  issuance 
under  the  statute  is  discretionary  with  the  Secretary  of  State, ^  still 
the  compliance  by  a  law-abiding  American  citizen  with  the  terms 
of  the  statute  and  the  rules  prescribed,  will  usually  be  followed  by  the 
issuance  of  the  passport.^  The  extension  of  diplomatic  protection, 
however,  being  but  slightly  limited  or  controlled  by  statutory  provi- 
sions, involves  the  exercise  of  a  far  wider  discretion,  so  that  the  mere 
possession  of  a  passport  will  under  many  circumstances  not  carry  with 
it  the  right  to  diplomatic  protection.  Thus,  the  inequitable  conduct 
of  the  citizen  even  though  in  possession  of  a  passport  has  in  several 
cases  operated  as  a  forfeiture  of  diplomatic  protection  and  warranted 
its  withdrawal  by  the  government  {infra,  §  338  et  seq.) . 

On  the  other  hand,  diplomatic  protection  is  a  more  vital  right  than 
the  claim  to  a  passport  and  it  has  been  extended  in  cases  where  com- 
pliance with  statutory  provisions  as  to  the  issuance  of  a  passport  was 
impossible,  or  where  in  the  exercise  of  discretion  the  passport  was 
denied.  Thus,  the  title  to  a  passport  having  generally  been  limited 
to  citizens  of  the  United  States,  the  free  American  negro,  (before  the 
adoption  of  the  Fourteenth  Amendment),  the  unnaturalized  Indian, 
and  the  natives  of  Porto  Rico  and  the  Philippines  (between  1898  and 
1900,  and  1902,  respectively),  though  unable  to  secure  passports,  were 
nevertheless  protected  abroad  by  the  United  States.  Similarly,  the 
Secretary  of  State  having  declined  on  grounds  of  public  policy  to  issue 
a  passport,  it  does  not  follow  that  diplomatic  protection  will  be  re- 
fused in  case  of  need  for  it.  Protection  is  not  dependent  upon  a  pass- 
port, and  while  its  possession  is  in  international  law  an  evidence  of 
citizenship,  its  absence  is  not  fatal  to  protection.^ 

'  Knox,  Atty.  Gen.,  Aug.  29,  1901  (Chinese  citizens  of  Hawaii — passport),  2.3 
Op.  Atty.  Gen.  509,  511;  citing  Hoar,  Atty.  Gen.,  June  12,  1869,  13  Op.  Atty.  Gen. 
72,  89.    See  also  Moore's  Dig.  Ill,  919-923. 

'^  Mr.  Hay,  Sec'y  of  State,  in  Circular— Passports  for  persons  residing  or  sojourn- 
ing abroad,  March  27,  1899,  For.  Rel.,  1902,  pp.  1,  2. 

^  Memorandum  of  Solicitor  of  the  State  Dept.  in  case  of  J.  H.  Brown,  Jan.  2, 1907, 
printed  in  For.  Rel.,  1907,  II,  1080. 


RELATION    OF    PASSPORT   TO   DIPLOMATIC    PROTECTION  495 

Under  the  rules  governing  the  issuance  of  passports  it  will  be  refused 
where  desired  to  further  an  unlawful  or  improper  purpose.^  The 
causes  of  refusal  to  issue  passports  to  citizens  are  many  and  depend 
upon  considerations  applicable  to  individual  cases.  It  has  been  re- 
fused to  an  American  citizen  in  Egypt  engaged  in  blackmailing  proj- 
ects and  in  the  endeavor  to  disturb  the  relations  of  this  country  with 
the  representatives  of  foreign  countries.^  Yet  the  United  States  would 
protect  such  an  individual  in  his  right  to  a  fair  trial  and  just  treat- 
ment. 

Thus,  while  it  seems  clear  that  the  right  to  a  passport  and  to  dip- 
lomatic protection  do  not  entirely  coincide,  it  is,  nevertheless,  true 
that  as  a  general  rule  the  issuance  of  a  passport  will  carry  with  it  the 
protection  of  the  government  and  its  refusal  maj^  be  interpreted  as  a 
denial  of  protection.  The  cases  in  which  its  issuance  has  been  re- 
fused on  the  ground  that  protection  is  not  properly  due  will  be  con- 
sidered hereafter  under  the  head  of  limitations  on  protection  {infra, 
§  302  et  seq). 

The  passport  and  the  certificate  of  registration  are  practically  the 
only  documents  issued  by  the  United  States  operating  mtemationally 
as  a  primary  evidence  of  the  citizenship  of  its  citizens  abroad  and 
of  their  right  to  diplomatic  protection.  Other  documents  have  been 
occasionally  issued,  as,  for  example,  safe-conducts,  issued  in  war  time, 
letters  of  protection,  documents  in  the  nature  of  safe-conducts  issued 
to  American  vessels,  sea-letters,  and  particularly,  so-called  special 
passports,  issued  to  officials  travelling  abroad  on  public  business, 
which  emphasize  the  personal  character  or  position  of  the  individual 
rather  than  his  nationality.^ 

1  Rules  governing  the  granting  and  issuing  of  passports  in  the  United  States, 
Sept.  12,  1903.  This  clause  has  been  omitted  from  the  "Rules"'  of  March  10,  1913, 
Nov.  13,  1914  and  Jan.  12,  1915,  but  the  principle  is  in  no  wise  changed.  Mr.  Hill, 
Ass't  Sec'y  of  State,  to  Mr.  Clarke,  Nov.  4,  1898,  For.  Rel.,  1899,  p.  88. 

'  Case  of  Waldberg,  Mr.  Wilson,  Act'g  Sec'y  of  State,  to  Mr.  Beaupre,  April  27, 
1907,  For.  Rel.,  1907,  II,  1083. 

'  The  American  passport,  p.  7  et  seq.,  in  which  various  forms  of  special  passport, 
issued  from  time  to  time,  are  set  forth.  See  also  Moore's  Dig.  Ill,  8.56,  1001-1003. 
Safe-conducts  in  a  form  similar  to  special  passports,  have  been  issued  occasionally 
to  aliens.  See  Moore's  Dig.  Ill,  1002.  For  passport  regulations  in  time  of  war, 
eee  Moore's  Dig.  Ill,  1015  d  sea. 


496  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

§  216.  Regulations  Governing  Issuance. 

Up  to  1856  the  issuance  of  passports  was  not  regulated  b>  law. 
The  loose  methods  of  issuance  by  the  Department  of  State,  as  well 
as  by  governors  of  states,  state  officials,  and  even  notaries  public, 
brought  about  complaints  of  foreign  governments.  Some  of  them 
refused  in  fact  to  recognize  the  documents  issued  by  local  authorities. 
Thereupon,  the  attempt  was  made  by  statute  to  lay  down  a  definite 
practice.^  By  the  act  of  August  18,  1856,  as  embodied  in  §  4075  of 
the  Revised  Statutes,  the  Secretary  of  State  was  authorized  to  ''grant 
and  issue  passports,  and  cause  passports  to  be  granted,  issued,  and 
verified  in  foreign  countries  by  such  diplomatic  or  consular  officers 
of  the  United  States  and  "  (as  amended  by  the  Act  of  June  14,  1902, 
32  Stat,  at  L.  386)  by  such  chief  or  other  executive  officer  of  the  in- 
sular possessions  of  the  United  States"  and  under  such  rules  as  the 
President  shall  designate  and  prescribe  for  and  on  behalf  of  the  United 
States." 

The  frequently  expressed  demand  of  the  United  States  that  foreign 
countries  accept  the  American  passport  as  final  evidence  of  citizen- 
ship has  resulted  in  the  exercise  of  great  care  in  its  issue  and  insistence 
upon  compliance  with  stringent  requirements  by  the  applicant  to  in- 
sure the  authenticity  of  his  citizenship.  The  requirements  of  the 
Department  of  State  for  the  issuance  of  a  passport  ^  are  considered 
hereafter.  The  primary  condition  is  the  proof  of  citizenship,  which 
in  the  case  of  native  citizens,  owing  to  the  absence  of  birth  registra- 
tion requirements  in  most  of  the  states  of  the  country,  consists  usually 
of  an  affidavit  only  and  in  the  case  of  naturalized  citizens  or  those 

1  Moore's  Dig.  Ill,  862. 

*  The  rules  governing  the  granting  and  issuing  of  passports  in  the  United  States 
are  revised  by  each  incoming  administration.  Those  in  force  in  1896  are  set  out  in 
the  American  Passport,  59  et  seq.;  those  of  September  12,  1903  are  used  by  Profes- 
sor Moore  in  his  chapter  on  passports  and  by  Van  Dyne  in  his  work  Citizenship  of 
the  United  States,  Rochester,  1904,  223  et  seq.  The  rules  of  March  10,  1913,  adopted 
by  the  Wilson  administration,  were  revised  and  amended  in  important  particulars 
by  those  of  Nov.  13,  1914  and  Jan.  12,  1915  (in  force  Feb.  1,  1915),  the  changes 
being  necessitated  by  the  exigencies  arising  out  of  the  European  War.  The  "Rules" 
issued  Jan.  12,  1915  and  the  Instructions  to  Diplomatic  and  Consular  Officers  of 
Dec.  21,  1914  (on  the  basis  of  the  rules  of  Nov.  13,  1914),  are  printed,  infra,  §§  219, 
220, 


REGULATIONS   GOVERNING   ISSUANCE  497 

claiming  citizensiiip  through  the  naturalization  of  another,  the  sub- 
mission of  the  certificate  of  naturalization.  In  certain  cases  secondary- 
proof  of  naturalization  is  admitted.^  Under  the  rules  of  January  12, 
1915,  a  native  citizen  born  in  a  place  where  births  are  recorded,  is 
expected  and  may  be  required  to  submit  a  birth  certificate  with  his 
application. 

In  1907  an  important  change  was  made  in  the  rules  governing  the 
issuance  of  passports.  The  practice  of  issuing  passports  not  only  by 
the  Department  of  State,  but  by  embassies  and  consulates  of  the  United 
States  in  foreign  countries,  had  seriously  impaired  the  control  of  the 
Department  over  its  passports  and  the  individuals  in  possession  of 
them.  This  was  especially  the  case  owing  to  the  practice  of  the  em- 
bassies in  issuing  successive  passports  to  the  same  individual  while 
abroad,  who  could  thus  for  long  periods  of  time  supply  himself  with 
these  proofs  of  citizenship  without  undertaking  any  of  the  duties  of 
citizenship. - 

By  an  instruction  of  Secretary  of  State  Root  of  April  19,  1907,  which 
quoted  the  Diplomatic  Instructions  and  Consular  Regulations,  as 
amended  by  the  executive  order  of  April  6,  1907,  it  was  provided  that 
passports  could  not,  after  July  1,  1907,  be  issued  by  diplomatic  or 
consular  officers 

"if  the  applicant  has  time  to  apply  to  the  Department  of  State  and 
await  its  reply.  Where  inconvenience  or  hardship  would  result  to  a  person 
entitled  to  receive  a  passport  unless  he  received  it  at  once,  a  diplomatic 
officer,  or  a  consular  officer  who  shall  have  received  authority  to  do  so 
from  the  Secretary  of  State,  may  issue  to  such  person  an  emergency 
passport,  good  for  a  period  not  to  exceed  six  months  from  the  date  of 
issuance,  and  to  be  used  for  a  purpose  which  shall  be  stated  in  the  pass- 
port." 

On  satisfactory  proof  of  citizenship  and  title  to  the  passport  sub- 
mitted to  the  diplomatic  or  consular  officer,  the  application  was  to 
be  forwarded  by  him  to  the  Department  of  State  and  the  passpor 

1  The  American  passport,  p.  155,  et  seq.;  see  also  with  reference  to  the  meau'  :* 
proof  necessary  for  persons  claiming  citizenship  through  the  naturalization  of  pareiot-. 
For.  Rel,  1901,  pp.  306-208;  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Porter,  October  14, 
1902,  For.  Rel.,  1902,  p.  420. 

'  Report  on  the  subject  of  citizenship,  expatriation  and  protection  abroad,  House 
Doc.  326.  59th  Cong.,  2nd  sess.,  p.  14. 


498  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

issued  from  Washington.*  The  issue  of  emergency  passports  is  allsx) 
restricted  to  cases  in  which  the  applicant  is  about  to  proceed  to  a 
lountry  to  obtain  admission  into  which  a  passport  is  obligatory.  Local 
authorities  frequently  require  the  possession  of  a  passport  as  a  con- 
dition of  sojourn  in  the  country.  Emergency  passports  may  be  issued 
to  satisfy  these  local  requirements  only  in  case  the  authorities  will 
not  accept  a  certificate  of  registration,  which  in  accordance  with  para- 
graph 172  of  the  consular  regulations  and  the  provisions  of  the  execu- 
tive order  of  April  8,  1907,  may  be  issued  by  consuls  on  the  registration 
by  American  citizens  of  their  citizenship,  the  certificates  being  good 
for  one  year  only  and  renewable.^ 

Diplomatic  and  principal  consular  officers  were,  until  January, 
1915,  authorized  to  extend  for  a  period  of  two  years  a  passport  issued 
by  the  Department,  the  life  of  which,  limited  to  two  years,  was  about 
to  expire.  A  passport  which  had  expired  could  not  be  extended.  No 
passports  could  be  extended  more  than  once,  and  emergency  passports 
not  at  all.  These  provisions  have  been  amended  by  the  rules  of  Jan- 
uary 12,  1915  (which  will  probably  remain  in  force  until  the  end  of 
the  European  War)  to  the  extent  that  a  passport  is  now  valid  for 
six  months  only,  and  may  be  renewed  not  more  than  twice,  for  a  sim- 
ilar period,  by  a  diplomatic  or  principal  consular  officer,  on  presenta- 
tion of  a  sworn  statement  of  the  names  of  the  countries  which  the 
citizen  expects  to  visit  and  the  objects  of  his  visits  thereto. 

The  effect  of  these  regulations  is  to  centralize  control  in  the  De- 
partment of  State  over  every  bearer  of  a  passport,  in  that  it  provides 
more  stringent  scrutiny  of  the  authenticity  of  citizenship  and  its  con- 
tinued conservation  by  citizens  abroad.  It  enhancer:  the  probative 
weight  of  a  passport  by  abolishing  many  of  the  abuses  which  made 
the  possession  of  a  passport  so  easily  possible  by  persons  who  were 
not  bona  fide  citizens  of  the  United  States. 

Passports  since  1845  have  always  been  limited  in  duration.  Up 
to  1845  passports  were  either  general  or  granted  for  a  specific  voyage. 

'  Circular  'Issuance  of  Passports,"  April  19,  1907,  For.  Rel.,  1907,  p.  13. 

2  The  numerous  conditions  for  the  issue  of  certificates  of  registration  may  be 
found  in  the  Circular  "Registration  of  American  citizens,"  April  19,  1907,  For.  Rel., 
1907,  p.  6 


KEGULATIONS   GOVERNING   ISSUANCE  499 

The  latter  class  terminated  when  their  purpose  was  accomplished, 
but  the  former  contained  no  notice  of  their  limitation.  In  that  year, 
however,  by  a  Department  circular,  a  new  passport  was  required  each 
time  a  citizen  left  the  country,  to  be  renewed  at  least  annually,  the 
time  limit  of  the  passport  up  to  1873  being  one  year.  By  the  circular 
of  September  1,  1873,  the  duration  of  the  passport  was  extended  to 
two  years  from  the  date  of  issuance.^  The  following  reasons  have 
Ijeen  advanced  to  justify  the  short  limitations:  first,  the  fee  is  the 
only  contribution  made  by  many  citizens  abroad;  secondl}',  the  gov- 
ernment is  entitled  to  place  its  grant  under  such  conditions  as  would 
preclude  it  from  bemg  made  the  instrument  of  imposition  either  upon 
itself  or  upon  foreign  governments;  and  thirdly,  to  secure  at  reasonable 
intervals  evidence  of  the  conservation  of  American  citizenship  by 
persons  residing  indefinitel}^  abroad.-  Under  the  recent  "war  regula- 
tions," the  duration  of  the  passport  is  limited  to  six  months,  renewable, 
not  by  the  Department,  but  by  a  diplomatic  or  principal  consular 
officer,  on  the  presentation  of  certain  sworn  evidence,  for  two  periods 
of  six  months  each. 

Besides  the  regular  passport  issued  to  citizens,  the  issuance  of  other 
documents  in  the  nature  of  passports  has  at  times  been  authorized, 
largely  to  comply  with  requirements  of  local  law  abroad,  or  to  cover 
the  cases  of  such  persons  as  could  not  comply  entirely  with  the  re- 
quirements for  the  issuance  of  a  regular  passport.  Thus  documents 
WTre  issued  to  an  unnaturalized  American  Indian  abroad,  certifying 
his  status  and  name  and  adding  that  he  is  "a  ward  of  the  United  States 
and  is  entitled  to  the  protection  of  its  consular  and  other  officials,"  ^ 
and  to  free  American  negroes  before  the  enactment  of  the  Fourteenth 
Amendment,  stating  that  they  were  "free  persons  of  color  born  in  the 

'  The  American  passport,  pp.  54,  75;  Moore's  Dig.  Ill,  977  el  seq. 

''  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Winchester,  min.  to  Switzerland,  March  28, 
1887,  For.  Rel.,  1887,  p.  1060,  and  Mr.  Hill,  Asst.  Sec'y  of  State,  to  Mr.  Clarke, 
Nov.  4,  1898,  For.  Rel.,  1899,  p.  88,  quoted  in  Moores  Dig.  Ill,  981,  982. 

On  the  question  of  fees  for  passports,  which  have  varied  from  time  to  time  but  are 
now  fixed  at  one  dollar,  see  Moore's  Dig.  Ill,  918;  The  American  passport,  72;  Rule  2 
of  Rules  governing  the  granting  and  issuing  of  passports,  March  10,  1913,  and 
Rule  3  of  Rules  of  January  12,  1915. 

'  Mr.  Sherman,  Sec'y  of  State,  to  Mr.  Breckinridge,  Amb.  to  Russia,  April  3,  1897, 
printed  in  The  American  passport,  146  and  in  Moore's  Dig.  III.  879. 


500  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

United  States"  and  invoking  for  them  all  lawful  aid  and  protection.^ 
These  documents  were  not  considered  as  passports.  Certain  documents 
known  as  letters  of  protection  were  issued  until  1869,  when,  by  a  cir- 
cular of  Secretary  of  State  Fish,  their  issuance  was  prohibited.^ 

Protection  papers  were  formerly  issued  occasionally  by  consuls 
in  order  to  certify  to  the  citizenship  of  the  bearer,  and  thus  meet  the 
requirements  of  local  law.  The  Department  of  State  has  forbidden 
consuls  to  issue  such  papers.  To  citizens,  the  Department  issues 
passports  only  and  it  has  been  said  in  various  forms  and  on  many 
occasions  by  our  secretaries  of  State  that  the  passport  is  the  only  attest- 
ation of  American  nationality  which  a  United  States  legation  is  au- 
thorized to  give.^  The  purpose  of  local  protection  papers  is  now  served 
by  the  consular  certificate  of  registration.  Mr.  Seward,  Secretary 
of  State,  stated  that  "what  are  technically  known  as  protection  papers 
are  used  in  our  international  intercourse  with  uncivilized  nations."  ^ 

§  217.  To  Whom  Issued. 

In  theory,  the  passport  as  a  certificate  of  citizenship  and  protection, 
can  be  issued  to  citizens  alone,  and  with  a  few  exceptions,  this  has 
been  the  policy  of  the  United  States.  Before  the  Act  of  1856,  which 
confined  the  issuance  of  passports  to  citizens,  a  few  such  exceptions 
had  been  made,  and  again  by  the  Act  of  March  3,  1863  (12  Stat.  L. 
731,  754),  passports  were  authorized  to  be  issued  to  aliens,  who  had 
made  a  declaration  of  intention,  and  who  were,  under  specified  con- 
ditions, liable  to  military  duty;  but  this  Act  was  repealed  in  1866  (14 
Stat.  L.  54).''  The  term  "citizens"  has  not  been  extended  to  include 
citizens  of  the  states,  but  is  confined  to  citizens  of  the  United  States. 

'  Mr.  Clayton,  Sec'y  of  State,  to  Mr.  D.  W.  C.  Clark,  Aug.  8,  1849,  Moore's  Dig. 
Ill,  880.  Forms  of  such  documents  are  to  be  found  in  the  American  passport,  15 
tt  seq. 

2  Moore's  Dig.  Ill,  896. 

^  See  quotations  from  Mr.  Seward,  Mr.  Bayard,  Mr.  Blaine  and  Mr.  Foster  in 
Moore's  Dig.  Ill,  857,  858. 

^  Mr.  Seward  in  an  instruction  to  Mr.  Asboth,  min.  to  Argentine  Republic, 
March  27,  1867,  Moore's  Dig.  Ill,  857;  see,  however,  the  British  practice  which 
authorizes  British  consuls  to  issue  protection  papers  for  use  with  the  local  authorities, 
Notification  of  Foreign  Office  of  August  22,  1898,  90  St.  Pap.  1176. 

^  The  American  passport,  44;  Moore's  Dig.  Ill,  871. 


TO    WHOM    ISSUED  501 

At  one  time  early  in  our  history  passports  were  issued  to  persons 
who  had  merely  declared  their  intention  of  becoming  citizens.  They 
were  described  not  as  citizens,  but  as  residents  who  had  declared  their 
intention.^  This  is  distinctly  an  exception  to  the  general  rule,  for 
leaving  aside  the  extraordinary  period  between  1863  and  1866,  it 
had  been  the  invariable  practice,  up  to  the  Act  of  March  2,  1907,  to 
refuse  passports  to  persons  who  had  simply  declared  their  intention 
to  become  citizens  of  the  United  States.  While  various  secretaries 
of  State  have  considered  these  persons  entitled  to  some  recognition 
and  in  exceptional  cases  to  a  limited  protection,  it  was  not  until  the 
Act  of  March  2,  1907  (34  Stat.  L.  1228),  that  the  privileges  of  a  pass- 
port were  under  certain  limitations  extended  to  them.  By  that  Act 
the  Secretary  of  State  was  authorized  in  his  discretion  to  issue  pass- 
ports to  persons  not  citizens  of  the  United  States,  as  follows : 

"Where  anj^  person  has  made  a  declaration  of  intention  to  become 
such  a  citizen  as  provided  by  law  and  has  resided  in  the  United  States 
for  three  years,  a  passport  may  be  issued  to  him  entitling  him  to  the  pro- 
tection of  the  Government  in  any  foreign  country:  Provided,  that  such 
passport  shall  not  be  valid  for  more  than  six  months  and  shall  not  be 
renewed,  and  that  such  passport  shall  not  entitle  the  holder  to  the  pro- 
tection of  this  Government  in  the  country  of  which  he  was  a  citizen 
prior  to  making  such  declaration  of  intention." 

The  passport  was  intended  to  furnish  limited  protection  for  a  brief 
period  to  those  persons,  inchoate  citizens,  who  by  their  declaration 
of  intention  had  lost  all,  or  some  of  their  rights  to  the  protection  of 
the  government  to  which  originally  they  owned  allegiance. 

Under  the  Rules  governing  these  passports,  issued  by  Secretary 
of  State  Bryan  on  November  14,  1913,  it  is  provided  that  such  pass- 
ports will  be  issued  only  when  it  is  affirmatively  shown  to  the  Secre- 
tary of  State  that  some  special  and  imperative  exigency  requires  the 
temporary  absence  of  the  applicant  from  the  United  States,  and  that 

'  Moore's  Dig.  Ill,  890;  The  American  passport,  12,  44;  Wharton's  Dig.  II,  §  192. 
The  Act  of  March  3,  1863,  by  which  aliens  who  had  made  a  declaration  of  intention 
and  who  were  under  certain  conditions  liable  to  miUtary  duty  were  permitted  to 
obtain  passports  need  not  be  considered  an  exception  to  the  general  rule,  if  Mr.  Se- 
ward's theory  is  correct  that  by  that  Act  these  persons  became  naturahzed  citizens. 
Mr.  Seward,  Sec'y  of  State,  to  Mr.  Dayton,  July  20,  1863,  Dipl.  Cor.,  1863, 1,  684, 
quoted  in  Moore's  Dig.  Ill,  871-872. 


502  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

without  such  absence  the  appKcant  would  be  subjected  to  special 
hardship  or  injury.  Nor  will  such  passports  be  issued  to  those  who 
have  made  the  declaration  of  intention  and  who  have  failed,  through 
their  own  neglect,  to  complete  their  intention  and  secure  naturaliza- 
tion as  citizens  of  the  United  States;  nor  to  those  who  may  make  the 
declaration  of  intention  in  order  to  secure  passports  and  leave  the 
United  States.  At  least  six  months  must  have  elapsed  since  the  ap- 
plicant's declaration  of  intention  and  not  more  than  one  passport 
will  be  issued  to  any  applicant.  Other  specific  provisions  governing 
the  issuance  of  this  so-called  "declarant's  passport"  are  set  forth 
in  the  Rules  issued  November  14,  1913.  During  the  present  European 
War,  the  Department  of  State  has  declined  to  issue  declarant's  pass- 
ports to  the  subjects  of  the  belligerent  countries. 

In  cases  of  dual  allegiance,  it  has  been  held  that  a  passport  should  not 
be  granted  by  one  of  the  governments  to  which  allegiance  is  due  in  order 
that  the  applicant  may,  while  continuing  to  reside  within  the  jurisdiction 
of  the  other,  be  exempt  from  its  claims.^  Durmg  the  continuance 
of  the  present  European  War,  it  has  l^een  the  policy  of  the  Depart- 
ment not  to  issue  passports  to  naturalized  citizens,  natives  of  the 
countries  at  war,  except  in  cases  of  urgent  necessit}^,  the  object  being 
to  avoid  diplomatic  controversies  and  difficulties  engendered  by  con- 
flicting claims  to  the  citizen's  allegiance,  and  possible  drafts  into  mili- 
tary service. 

The  status  of  Cubans,  Porto  Ricans,  and  natives  of  the  Philippines 
necessitated  a  deviation  in  practice  and  ultimately,  by  the  Act  of 
June  14,  1902,  with  reference  to  Porto  Rico  and  the  Philippines,  a 
change  in  the  law  as  to  the  issuance  of  passports.  From  the  period 
of  the  treaty  of  peace  with  Spain  until  the  independence  of  Cuba  the 
United  States  felt  called  upon  to  extend  its  protection  to  natives  of 
Cuba  by  the  use  of  good  offices  and  the  grant  of  appropriate  certif- 
icates. An  official  protection,  however,  was  granted  to  Porto  Ricans 
and  to  FiUpinos  who  took  the  oath  of  allegiance  to  the  United  States.^ 

'  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Phelps,  min.  to  Germany,  Dec.  14,  1889,  citing 
opinions  of  Attorneys  General  Hoar  (1869),  13  Op.  Atty.  Gen.  89,  and  Pierrepont 
(1875),  15  Op.  Atty.  Gen.  15.    Quoted  in  Moore's  Dig.  Ill,  885. 

^  For  the  practice  of  endorsing  certificates  of  matriculation  of  Cubans  and  Porto 
Ricans  by  the  legations  of  the  United  States,  see  For.  Ilel.,  1900,  pp.  894-895,  r,nd 


TO    WHOM    ISSUED  503 

The  Act  of  June  14,  1902  (32  Stat.  L.  38G),  changed  the  test  of  title 
to  a  passport  from  "citizens"  to  "those  o-;\'ing  allegiance."  That 
Act  provides:  "No  passport  shall  be  granted  or  issued  to  or  verified 
for  any  other  persons  than  those  owing  allegiance,  whether  citizens 
or  not,  to  the  United  States."  This  was  an  amendment  of  §  4076  of 
the  Revised  Statutes. 

We  have  already  adverted  to  the  form  of  document  issued  to  an 
unnaturalized  American  Indian  and  to  a  free  negro  before  the  enact- 
ment of  the  Fourteenth  Amendment.  In  the  case  of  naturalized  citi- 
zens, full  naturalization  is  necessary  and  not  merely  compliance  with 
the  conditions  which  might  have  obtained  naturalization.  Thus, 
the  passport  will  not  be  issued  to  persons  who  have  been  merely  sol- 
diers in  the  United  States  Army,^  nor  to  those  who  have  served  five 
3^ears  in  the  Nav>'  followed  by  honorable  discharge  under  the  Act  of 
July  26,  1894  (28  Stat.  L.  124).- 

When  issued  to  a  man  the  passport  includes  his  wife  and  minor 
children,  servant  or  any  of  them,  provided  the  allegiance  of  the  servant 
is  to  the  United  States.  Issued  to  a  woman,  it  includes  her  minor 
children  and  servant  as  above  mentioned.  A  servant  does  not  include 
a  governess,  tutor,  pupil,  companion,  or  person  holding  like  relations 
to  the  applicant  for  the  passport.^  Women  may  obtain  passports 
on  their  own  account,  as  may  minors  who  are  citizens  of  the  United 
States,^  but  they  will  not  be  issued  to  children  of  naturalized  citizens 
bom  abroad  who  have  never  been  in  the  United  States  and  whose 
fathers  are,  or  were,  permanently  residing  abroad.^    They  have,  how- 

for  the  method  of  issuing  documents  in  the  nature  of  passports  as  "  citizens  of  Porto 
Rico  or  Philippines,"  etc.,  and  as  such  "entitled  to  the  protection  of  the  United 
States,"  see  Moore's  Dig.  Ill,  876-877.  Citizens  of  Hawaii  were  by  the  Act  of 
April  30,  1900  (31  Stat.  L.  141),  declared  to  be  citizens  of  the  United  States. 

'  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Endicott,  Feb.  23,  1887,  quoted  in  Moore's 
Dig.  Ill,  873. 

-  Mr.  Hay,  Sec'y  of  State,  to  Mr.  White,  amb.  to  Germany,  Jan.  27,  1899,  For. 
Rol.,  1899,  p.  296,  passport  of  Oscar  von  Wolff;  reprinted  in  Moore's  Dig.  Ill,  874. 

'  Rules  governing  the  granting  and  issuing  of  passports,  March  10,  1913,  Rule  11; 
Rules  of  January  12,  1915,  Rule  12.  During  the  present  European  War,  the  prac- 
tice has  been  adopted  of  stating  specifically  the  names  of  all  those  covered  by  the 
pa.ssport,  and  in  the  case  of  Germany,  individual  passports  are  issued. 

^  Citations  in  Moore's  Dig.  Ill,  882-883;  Rule  8  of  Rules  of  January  12,  1915. 

^  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Vignaud,  charge  at  Paris,  June  13,  1888, 


504  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

ever,  been  issued  to  widows  with  minor  children,  similarly  residing 
abroad,  for  the  purpose  of  preserving  the  right  of  such  minor  children 
to  elect  American  citizenship  on  coming  of  age.^  Children  bom  abroad 
are  in  fact  given  every  opportunity  to  perserve  their  American  citizen- 
ship, even  under  circumstances  where  the  parents,  by  long  residence 
abroad,  would  be  considered  as  not  entitled  to  American  protection. 

§  218.  Requirements  of  Foreign  Governments. 

Most  governments  do  not  require  aliens  to  produce  a  passport  either 
on  admission,  or  as  a  condition  of  residence,  or  on  leaving.  However, 
the  right  of  foreign  governments  on  such  occasions  to  require  passports, 
as  in  the  case  of  Russia,  Turkey,  and  other  countries,  cannot  be  dis- 
puted, although  the  exaction  of  heavy  charges  for  vises  by  local  au- 
thorities may  be  the  subject  of  international  complaint.^  Unequal 
and  discriminating  charges  against  citizens  of  certain  countries  will 
similarly  evoke  a  diplomatic  protest.^ 

The  request  conveyed  by  the  passport  is  expected  to  receive  recog- 
nition by  foreign  governments  and  their  officials,  subject  of  course 
to  their  local  laws.  Where  conditions  for  the  recognition  of  its  validity 
are  imposed,  they  usually  take  the  form  of  a  diplomatic  or  consular 
vise,  an  endorsement  on  the  passport  denoting  that  it  has  been  ex- 
amined and  is  authentic  and  that  the  bearer  may  be  permitted  to 
proceed  on  his  journey.  "Sometimes  it  is  required  that  the  vise  be 
affixed  in  the  country  where  the  passport  is  issued,  by  a  diplomatic 
or  consular  officer  of  the  government  requiring  it;  sometimes  simply 
by  such  officer  anywhere;  sometimes  at  the  frontier  of  the  country 
to  which  admission  is  sought.     It  may  even  be  required  from  a  dip- 

For,  Rel.,  1888,  I,  542,  quoted  in  Moore's  Dig.  Ill,  884.  The  only  qualification  of 
the  rule,  provided  the  father  was  a  citizen  at  birth  of  the  child,  operates  to  enable 
the  child  to  obtain  a  passport,  at  majority,  to  enable  him  to  return  to  the  U.  S.  to 
take  up  the  duties  of  citizenship. 

1  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Phelps,  min.  to  Germany,  Nov.  11,  1891, 
For.  Rel.,  1891,  521. 

2  Mr.  Sherman,  Sec'y  of  State,  to  Mr.  Powell,  min.  to  Haiti,  Oct.  2.3,  1897,  For. 
Rel.,  1897,  p.  343,  and  other  citations  in  Moore's  Dig.  Ill,  861;  Mr.  FreUnghuysen, 
Sec'y  of  State,  to  Mr.  Foster,  rain,  to  Spain,  March  12,  1884,  Moore's  Dig.  Ill,  999. 

3  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Muruaga,  Spanish  min.,  May  19,  1886,  and 
other  citations  in  Moore's  Dig.  Ill,  999. 


REQUIREMENTS    OF    FOREIGN   GOVERNMENTS  505 

lomatic  or  consular  oflicer  of  the  government  which  issued  the  pass- 
port." 1 

Owing  to  the  stringent  supervision  of  aliens  necessitated  by  the 
state  of  war  existing  in  Europe,  many  of  the  European  countries, 
particularly  Germany,  increased  to  a  considerable  degree  the  require- 
ments for  the  vise  of  foreign  passports.  For  informative  purposes, 
the  Department  of  State  issued  a  circular  on  February  8,  1915,  con- 
cerning the  latest  requirements  of  various  European  countries  in  this 
respect : 

"The  Department  understands  that  it  is  necessary  to  have  passports 
visaed  for  entry  into  the  following  countries,  by  diplomatic  or  consular 
oflScers  thereof:  Russia,  Turkey,  Italy,  Germany,  Roumania,  and  Servia. 

''Passports  of  American  citizens  going  to  Russia  should  be  visaed 
by  a  Russian  consular  oflficer,  preferably  in  the  United  States,  at  San 
Francisco,  Chicago,  or  New  York  City.  One  who  desires  to  have 
the  visa  of  his  passport  for  Russia  cover  a  period  longer  than  three 
months  should  make  a  special  request  to  that  effect. 

' '  Passports  to  be  used  in  Turkey  should  be  visaed  by  a  Turkish  con- 
sular officer,  either  in  the  United  States,  at  San  Francisco,  Chicago, 
Boston,  or  New  York  City,  or  at  a  Turkish  consulate  abroad. 

"  Passports  to  be  used  in  Italy  should  be  visaed  by  an  Italian  consular 
officer,  preferably  in  the  United  States. 

"Passports  to  be  used  in  Germany  should  be  visaed  by  a  German 
diplomatic  or  consular  officer,  preferably  in  the  United  States. 

"Passports  to  be  used  in  Servia  should  be  visaed  by  the  Servian 
Consul-General  in  New  York  City,  or  by  a  diplomatic  or  consular 
officer  of  Servia  in  some  foreign  country. 

' '  Passports  to  be  used  in  Roumania  should  be  visaed  by  a  Roumanian 
diplomatic  or  consular  officer  in  some  foreign  country,  there  being 
no  diplomatic  or  consular  officers  of  Roumania  in  the  United  States. 

"The  Department  understands  that  it  is  advisable  to  have  passports 
visaed  by  consular  officers  of  the  following  countries,  for  use  therein: 
Austria-Hungary,  Denmark  and  France;  and  that  it  is  advisable 
to  have  them  visaed  for  use  in  Spain  by  the  Spanish  Ambassador 
in  Washington  or  a  Spanish  consul  in  New  York  City,  New  Orleans, 
1  The  American  passport,  5;  Moore's  Dig.  Ill,  994, 


506  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

or  San  Francisco.  It  is  deemed  advisable  for  persons  going  to  Bul- 
garia to  have  their  passports  visaed  by  the  Consul-General  of  Bulgaria 
in  New  York  City,  or  by  a  diplomatic  or  consular  officer  of  Bulgaria 
in  some  foreign  country. 

"The  Department  is  informed  that  persons  entering  British  territory 
are  required  to  bear  passports,  but  that  it  is  not  necessary  that  they 
should  be  visaed. 

"American  citizens  who  expect  to  visit  countries  of  Europe  other 
than  those  named  above  should  inquire  of  diplomatic  or  consular 
officers  thereof  concerning  the  necessity  or  advisability  of  having 
their  passports  visaed. 

' '  The  Department  of  State  does  not  act  as  the  intermediary  in  pro- 
curing visas.  Application  should  be  made  by  the  holder  of  the  passport 
directly  to  the  diplomatic  or  consular  officer.  " 

In  a  circular  notice  of  November  17,  1914,  American  citizens  were 
advised  "to  avoid  visiting  unnecessarily  countries  which  are  at  war, 
and  particularly  to  avoid,  if  possible,  passing  through  or  from  a  bel- 
ligerent country  to  a  country  which  is  at  war  therewith;"  and  that 
"American  citizens  who  find  it  necessary  to  visit  such  countries  should 
as  a  matter  of  precaution  and  in  order  to  avoid  detention,  provide 
themselves  with  letters  or  other  documents,  in  addition  to  their  pass- 
ports, showing  definitely  the  objects  of  their  visits.''  France,  after 
April  1,  1915,  required  foreigners  to  exhibit  certified  copies  of  the  ap- 
plications upon  which  passports  were  issued  to  them,  whereupon 
the  Department  made  arrangements  to  place  its  seal  upon  a  copy  of 
the  application  returnable  to  the  applicant.  French  consuls  were 
authorized  to  issue  passports  to  foreigners,  not  enemy  subjects  or 
persons  possessing  dual  nationality,  who  desired  to  enter  France. 

As  will  have  been  noted,  these  requirements  of  foreign  law  differ 
from  country  to  country  and  are  not  generally  objected  to  if  con- 
sidered reasonable.  The  practice  of  Russian  consuls  in  the  United 
States  to  interrogate  American  citizens  contemplating  visits  to  Russia 
as  to  their  race  and  religious  faith  and  denying  to  certain  classes  of 
Jews  the  authentication  of  the  passport,  provoked  the  United  States 
to  remonstrate  against  what  it  conceived  to  be  the  invasion  of  its 
territorial  jurisdiction  and  the  infringement  of  the  treaty  rights  of  its 


REQUIREMENTS   OF   FOREIGN   GOVERNMENTS  507 

Citizens.  The  protests  continued  through  several  administrations,  cul- 
minating finally,  during  the  administration  of  President  Taft,  in  the 
abrogation  of  the  Russian  treaty  of  Dec.  18,  1832.^ 

The  local  legalization  of  documents  is  required,  either  on  admis- 
sion or  during  sojourn,  for  police  supervision  of  foreign  residents.  While 
the  United  States  has  never  objected  to  the  provisions  of  local  law 
abroad  bj-  which  its  consuls  or  diplomatic  officers  are  required  to  verify 
the  passport  or  endorse  a  suitable  statement  on  it,  they  have  objected  to 
foreign  officials  sending  the  passport  back  to  the  Department  of  State 
for  authentication  of  the  citizenship  of  the  bearer.  The  form  in  which 
the  consular  authentication  is  made,  either  on  the  passport  itself  or 
in  the  form  of  a  separate  certificate  based  on  the  passport,  has  also 
provoked  some  discussion  with  various  countries  w^hose  local  require- 
ments were  considered  in  excess  of  those  with  which  our  represent- 
atives abroad  were  authorized  to  comply.  Discussions  of  this  character 
took  place  with  the  Argentine  Republic,-  with  Uruguay,^  with  China, ^ 
and  wdth  Spain  in  Cuba.''  B3'  diplomatic  negotiation  these  require- 
ments of  local  law,  which  are  particularly  stringent  in  countries  like 
Turkey,  Russia  and  China,  have  been  attempted  to  be  adjusted  and 
reconciled  with  the  practice  and  policy  of  the  United  States.^ 

'  Quotations  from  President's  messages  and  diplomatic  notes  in  Moore's  Dig.  Ill, 
996-997;  Moore's  Dig.  II,  8-12.  See  House  Joint  Resolution  166,  and  Senate  J.  R.  60 
and  hearings  thereon  in  62nd  Congress,  2nd  session,  when  the  treaty  was  abrogated, 
on  the  ground  that  Russia  had  violated  article  I;  also  H.  Report  203,  same  session, 
and  S.  Doc.  161,  Message  transmitting  notice  of  Sec'y  of  State  to  American  Ambas- 
sador at  St.  Petersburg.  (See  also  an  address  by  Louis  Marshall,  Russia  and  the 
American  passport,  printed  as  Senate  Doc.  8.39,  61st  Cong.,  3rd  sess.,  10  p.)  See. 
however,  article  by  Gaillard  Hunt  in  Harper's  Weekly,  Jan.  6,  1912,  p.  21,  to  the 
effect  that  Russia's  attitude  and  practice  toward  American  Jews  were  not  in  viola- 
tion of  the  treaty. 

France  declined  to  abrogate  a  somewhat  similar  treaty  with  Russia  of  April  1, 
1874,  Foreign  Minister  Poincare  taking  the  ground  that  Russian  public  law  was  not 
abrogated  or  derogated  from  by  the  treaty.    40  Clunet  (1913),  124-128. 

2  Moore's  Dig.  Ill,  1007. 

3  Ibid.,  1009. 

*  Ibid.,  1010-1015. 
5  Ibid.,  859  et  seq. 

*  The  requirements  of  various  countries  and  diplomatic  notes  in  connection  there- 
with are  discussed  in  Moore's  Dig.  Ill,  1003  et  seq.;  994  et  seq.  For  the  "passport 
regulations  of  foreign  countries"  see  a  publication  issued  under  that  title  by  the 


508  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

It  is  admitted  that  for  police  purposes  and  as  a  condition  for  con- 
tinued residence,  a  foreign  country  may  satisfy  itself  as  to  the  authen- 
ticity of  the  citizenship  and  peaceful  nature  of  the  business  of  a  for- 
eign resident.  The  provisions  of  the  regulations  of  1907  by  which 
the  consular  certificate  of  registration  may  be  issued  locally  ^  and  by 
which,  in  case  of  necessity,  emergency  passports  may  be  issued,  are 
intended  to  satisfy  these  requirements  of  local  law  and  to  bring  about 
greater  uniformity  in  the  practice. 

In  order  to  summarize  the  requirements  for  the  issue  of  a  passport, 
and  particularly  the  information  and  proof  which  the  appHcant  must 
present,  it  has  seemed  desirable  to  print  in  full  the  rules  of  January  12, 
1915,  governing  the  granting  and  issuing  of  passports,  and  the  cir- 
cular instruction  of  December  21,  1914,  to  diplomatic  and  consular 
officers,  concerning  the  new  passport  regulations,  based,  however, 
upon  the  passport  rules  issued  November  13,  1914,  rather  than  the 
latest  rules  of  January  12,  1915. 

§  219.  Latest  Passport  Rules. 

1.  Authority  to  issue. — Section  4075  of  the  Revised  Statutes  of  the  United 
States,  as  amended  by  the  Act  of  Congress  approved  June  14,  1902,  provides  that 
"the  Secretary  of  State  may  grant  and  issue  passports,  and  cause  passports  to  be 
granted,  issued,  and  verified  in  foreign  countries  by  such  diplomatic  or  consular 
officers  of  the  United  States,  and  by  such  chief  or  other  executive  officer  of  the  in- 
sular possessions  of  the  United  States,  and  imder  such  rules  as  the  President  shall 
designate  and  prescribe  for  and  on  behalf  of  the  United  States."  The  following 
rules  are  accordingly  prescribed  for  the  granting  and  issuing  of  passports  in  the 
United  States. 

2.  By  whom  issued  and  refusal  to  issue. — No  one  but  the  Secretary  of  State 
may  grant  and  issue  passports  in  the  United  States  (Revised  Statutes,  Sections  4075, 
4078)  and  he  is  empowered  to  refuse  them  in  his  discretion. 

Passports  are  not  issued  by  American  diplomatic  and  consular  officers  abroad,  ex- 
cept in  cases  of  emergency;  and  a  citizen  who  is  abroad  and  desires  to  procure  a 
passport  must  apply  therefor  through  the  nearest  diplomatic  or  consular  officer  to 
the  Secretary  of  State. 

Dept.  of  State  in  1897.  (House  Doc.  335,  54th  Cong.,  2nd  sess.)  References  to 
legislation  in  various  countries  and  articles  on  the  subject  of  passports  and  the 
requirements  of  local  law,  will  be  found  in  Clunet's  Tables  genorales,  1904,  IV,  394- 
396;  I,  p.  814,  Nos.  6979-7064,  and  p.  986,  Nos.  9251-9270.  New  local  regulations 
concerning  passports  and  the  right  of  sojourn  are  frequently  printed  in  the  sec- 
tion "Faits  et  Informations"  in  the  current  numbers  of  Clunet. 
'  Circular  of  April  19,  1907,  For.  Rel.,  1907,  p.  6. 


LATEST   PASSPORT   RULES  509 

Applications  for  passports  by  persons  in  Porto  Rico  or  the  Philippines  should  be 
made  to  the  Chief  Executives  of  those  Islands.  The  evidence  required  of  such  appli- 
cants is  similar  to  that  required  of  applicants  in  the  United  States. 

3.  Fee. — By  Act  of  Congiess  approved  March  23,  1888,  a  fee  of  one  dollar  is 
required  to  be  collected  for  every  citizen's  passport.  That  amount  in  currency  or 
postal  money  order  should  accompany  each  appUcation  made  by  a  citizen  of  the 
United  States.  Orders  should  be  made  payable  to  the  Disbursing  Clerk  of  the  De- 
partment of  State.    Drafts  or  checks  will  not  be  accepted. 

4.  Applications. — A  person  who  is  entitled  to  receive  a  passport,  if  within  the 
United  States,  must  submit  a  WTitten  application,  in  the  form  of  an  affidavit,  to  the 
Secretary  of  State.  The  application  should  be  made  by  the  person  to  whom  the 
passport  is  to  be  issued  and  signed  by  him,  as  it  is  not  proper  for  one  person  to  apply 
for  another. 

The  affidavit  must  be  made  before  a  clerk  o/  a  Federal  or  Slate  Court  within  the  juris- 
diction of  tohich  the  applicant  or  his  witness  resides,  and  the  seal  of  the  court  must  be 
affixed. 

If  the  applicant  signs  by  mark,  two  attesting  witnesses  to  his  signature  are  required. 
The  applicant  is  required  to  state  the  date  and  place  of  his  birth,  his  occupation,  the 
place  of  his  permanent  residence,  and  within  what  length  of  time  he  will  return  to 
the  United  States  with  the  purpose  of  residing  and  performing  the  duties  of  citizen- 
ship. He  is  also  required  to  state  the  names  of  the  foreign  countries  which  he  expects 
to  tdsit,  and  the  objects  of  his  visits  thereto.  The  latter  statement  should  be  brief  and 
general  in  form,  thus:  "commercial  business";  ^  "to  attend  to  the  settlement  of  an  es- 
tate"; "to  bring  loife  and  children  to  this  country." 

The  applicant  must  take  the  oath  of  allegiance  to  the  United  States. 

The  application  must  be  accompanied  by  a  description  of  the  person  applying,  and 

should  state  the  following  particulars,  viz:  Age, ;  stature, feet, 

inches    (English     measure);     forehead,     ;    eyes,     ;     nose,     ; 

mouth, ;  chin, ;  hair, ;  complexion, ;  face, ;  special 

identifying  marks,  if  any  (scars,  birthmarks,  etc.) 

The  application  muM  also  be  accompanied  by  duplicate  photographs  of  the  appli- 
cant, on  thin  paper,  unmounted,  and  not  larger  in  size  than  three  by  three  inches.  One 
must  be  attached  to  the  back  of  the  application  by  the  clerk  of  court  before  whom  it  is  made, 
with  an  impression  of  the  seal  of  the  court  so  placed  as  to  cover  part  of  the  photograph 
but  not  the  features,  and  the  other  sent  loose,  to  be  attached  to  the  passport  by  the  Depart- 
ment.   Photographs  on  cardboard  or  postcards  will  not  be  accepted. 

The  application  must  be  supported  by  an  affidavit  from  at  least  one  credible  witness 
that  the  applicant  is  the  person  lie  represents  himself  to  be,  and  that  the  facts  stated  in 
the  application  are  true  to  the  best  of  the  witness'  knowledge  and  belief.  This  affidavit 
must  be  made  before  the  clerk  of  court  before  whom  the  application  is  executed  and  the 
witness  must  be  an  American  citizen,  who  resides  within  the  jurisdiction  of  the  court. 
The  applicant  or  his  witness  tnust  be  known  to  the  clerk  of  court  before  ivhom  the  applica- 
tion is  executed,  or  must  be  able  to  satisfy  such  officer  as  to  his  identity  and  the  boiui  fides 
of  the  application. 

'  An  applicant  who  states  that  he  is  going  abroad  on  commercial  business  should 
submit  with  his  application  a  letter  from  the  head  of  the  concern  which  he  represents. 


510  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

5.  Native  citizens. — An  application  containing  the  information  indicated  by 
rule  4  will  be  sufficient  evidence  in  the  case  of  a  native  citizen;  except  that  a  person 
born  in  the  United  States  in  a  place  where  births  are  recorded  mil  be  expected  to  submit 
a  birth  certificate  with  his  application. 

A  person  of  the  Chinese  race,  alleging  birth  in  the  United  States,  must  obtain 
from  the  Commissioner  of  Immigration  or  Chinese  Inspector  in  Charge  at  the  port 
through  which  he  proposes  to  leave  the  country  a  certificate  upon  his  application,  under 
the  seal  of  such  officer,  showing  that  there  has  been  granted  to  him  by  the  latter  a 
return  certificate  in  accordance  with  rule  16  of  the  Chinese  Regulations  of  the  Depart- 
ment of  Labor.  For  this  purpose  special  blank  forms  of  application  for  passports  are 
provided. 

Passports  issued  by  the  Department  of  State  or  its  diplomatic  or  consular  represen- 
tatives are  intended  for  identification  and  protection  in  foreign  countries,  and  not  to 
facilitate  entrj'  into  the  United  States,  immigration  being  under  the  supervision  of 
the  Department  of  Labor. 

6.  A    PERSON  BORN  ABROAD  WHOSE  FATHER  WAS  A  NATIVE  CITIZEN  OF  THE  UNITED 

STATES. — In  addition  to  the  statements  required  by  rule  4,  his  application  must  show 
that  his  father  was  born  in  the  United  States,  resided  therein,  and  was  a  citizen  at 
the  time  of  the  applicant's  birth.  The  Department  maj'  require  that  this  affidavit 
be  supported  by  that  of  one  other  citizen  acquainted  with  the  facts. 

7.  Naturalized  citizens. — In  addition  to  the  statements  required  by  rule  4, 
a  naturalized  citizen  must  transmit  his  certificate  of  naturalization,  or  a  duly  certified 
copy  of  the  court  record  thereof,  with  his  application.  It  will  be  returned  to  him  after 
inspection.  He  must  state  in  his  affidavit  when  and  from  what  port  he  emigrated  to 
this  country,  what  ship  he  sailed  on,  where  he  has  lived  since  his  arrival  in  the  United 
States,  when  and  before  what  court  he  was  naturalized,  and  that  he  is  the  identical 
person  described  in  the  certificate  of  naturalization.  The  signature  to  the  apphca- 
tion  should  conform  in  orthography  to  the  applicant's  name  as  written  in  his  certif- 
icate of  naturalization,  or  an  explanation  of  the  difference  should  be  submitted. 

8.  Woman's  application. — If  she  is  unmarried,  in  addition  to  the  statements 
required  by  rule  4,  she  should  state  that  she  has  never  been  married.  If  she  is  the 
wife  or  widow  of  a  native  citizen  of  the  United  States  the  fact  should  be  made  to 
appear  in  her  application,  which  should  be  made  according  to  the  form  prescribed 
for  a  native  citizen,  whether  she  was  born  in  this  country  or  abroad.  If  she  is  the 
wife  or  widow  of  a  naturalized  citizen,  in  addition  to  the  statements  required  by 
rule  4,  she  must  transmit  for  inspection  her  husband's  certificate  of  naturalization  or  a 
certified  copy  of  the  court  record  thereof,  must  state  that  she  is  the  wife  (or  widow) 
of  the  person  described  therein,  and  must  set  forth  the  facts  of  his  birth,  emigration, 
naturalization,  and  residence,  as  required  in  the  rules  governing  the  apphcation  of  a 
naturalized  citizen.  She  should  sign  her  own  Christian  name  with  the  family  name 
of  her  husband:  (Thus,  Mary  Doe;  not  Mrs.  John  Doe.) 

A  married  woman's  citizenship  follows  that  of  her  husband.  It  is  essential,  there- 
fore, that  a  woman's  marital  relations  be  indicated  in  her  application  for  a  passport, 
and  that  in  the  case  of  a  married  woman  her  husband's  citizenship  be  established. 

9.  The  child  of  a  naturalized  citizen  claiming  citizenship  through  the 
naturalization  of  the  parent. — In  addition  to  the  statements  required  by  rule  4, 
the  applicant  must  state  that  he  or  she  is  the  son  or  daughter,  as  the  case  may  be, 


LATEST    PASSPORT   RULES  511 

of  the  person  described  in  the  certificate  of  naturalization,  which  must  be  submitted 
for  inspection,  and  must  set  forth  the  facts  of  emigration,  naturahzation  and  resi- 
dence, as  required  in  the  rules  governing  the  application  of  a  naturalized  citizen. 

10.  A    RESIDENT   OF   AN   INSULAR   POSSESSION    OF   THE    UNITED    STATES   WHO    OWES 

ALLEGIANCE  TO  THE  UNITED  STATES. — In  addition  to  the  statements  required  by  rule  4, 
he  must  state  that  he  owes  allegiance  to  the  United  States,  and  that  he  does  not 
acknowledge  allegiance  to  any  other  government,  and  must  submit  affidavits  from 
at  least  two  credible  witnesses  having  good  means  of  knowledge  in  substantiation 
of  his  statements  of  birth,  residence  and  loyalty.  No  fee  is  required  for  the  issuance 
by  the  Department  of  an  insular  passport. 

11.  Expiration  and  renewal  of  passport. — A  passport  expires  six  7nonths 
from  the  date  of  its  issuance.  A  new  one  will  be  issued  upon  a  new  application,  ac- 
companied by  the  old  passport,  and,  if  the  applicant  be  a  naturalized  citizen,  the 
old  passport  will  be  accepted  in  lieu  of  a  certificate  of  naturalization,  if  the  applica- 
tion upon  which  it  was  issued  is  found  to  contain  sufficient  information  as  to  the 
naturalization  of  the  applicant.  Passports  are  not  renewed  by  the  Department,  but 
a  person  abroad  holding  a  passport  issued  by  the  Department  may  have  it  renewed 
for  a  period  of  six  months  upon  presenting  it  to  a  diplomatic  or  principal  consular 
officer  of  the  United  States,  when  it  is  about  to  expire,  with  a  sworn  statement  of 
the  names  of  the  countries  which  he  expects  to  visit  and  the  objects  of  his  visits 
thereto.    No  passport  shall  be  renewed  more  than  twice. 

12.  Wife,  minor  children,  and  servants. — \Mien  the  applicant  is  accompanied 
by  his  wife,  minor  children,  and  maid-servant,  who  is  a  citizen  of  the  United  States, 
it  will  be  sufficient  to  state  the  fact,  giving  their  names  in  full,  the  dates  and  places 
of  their  births,  and  the  allegiance  of  the  servant,  when  one  passport  will  suffice  for 
all.  For  a  man-servant  or  any  other  person  in  the  party  a  separate  passport  will  be 
required.  A  w^oman's  passport  may  include  her  minor  children  and  maid-servant 
under  the  above-named  conditions. 

(The  term  "maid-servant"  does  not  include  a  governess,  tutor,  pupil,  companion, 
or  person  holding  like  relation  to  the  applicant  for  a  passport.) 

13.  Titles. — Professional  and  other  titles  will  not  be  inserted  in  passports. 

14.  Blank  forms  of  application. — They  will  be  furnished  by  the  Department 
free  of  charge  to  persons  who  desire  to  apply  for  passports.  SuppHes  of  blank  ap- 
phcations  are  also  furnished  by  the  Department  to  clerks  of  courts. 

15.  Address. — Communications  should  be  addressed  to  the  Department  of  State, 
Bureau  of  Citizenship,  and  each  communication  should  give  the  post-office  address 
of  the  person  to  whom  the  answer  is  to  be  directed. 

16.  Additional  regulation. — The  Secretary  of  State  is  authorized  to  make 
regulations  on  the  subject  of  issuing  and  granting  passports  additional  to  these  rules 
and  not  inconsistent  with  them.^ 

To  become  effective  February  1,  1915. 

WooDRow  Wilson. 
The  White  House, 

12  January,  1915. 

'  The  itaUcs  indicate  the  provisions  which  constitute  amendments  of  previously 
issued  passport  rules. 


512  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

§  220.  Circular  Instruction  Concerning  New  Passport  Regulations. 

Washington,  December  21,  1914. 
To  the 
American  Diplomatic  and  Consular  Officers. 

Gentlemen: 

In  confirmation  of  the  Department's  recent  telegraphic  instructions  to  diplomatic 
and  certain  consular  officers  concerning  the  preparation  of  applications  for  Depart- 
mental and  emergency  passports,  and  the  issuance  of  the  latter,  the  following  in- 
structions are  given  for  your  guidance.  These  instructions  are  prescribed  in  pursu- 
ance of  the  passport  regulations  signed  by  the  President  November  13,  1914. 

EVIDENCE  OF  CITIZENSHIP  AND  IDENTIFICATION 

Conditions  precedent  to  the  granting  of  a  passport  are,  under  the  law  and  rules 
prescribed  by  authority  of  the  law,  that  the  citizenship  of  the  applicant,  his  identity, 
and,  as  a  rule,  his  permanent  residence  in  the  United  States  and  definite  intention 
to  return  to  it,  with  the  purpose  of  performing  the  duties  of  citizenship,  shall  satis- 
factorily be  established.  (See  circular  instruction  of  July  26,  1910,  entitled  "Pro- 
tection of  Native  Americans  Residing  Abroad,"  and  circular  instruction  of  April  19, 
1907,  entitled  "Expatriation,"  as  amended  by  circular  instruction  of  May  14,  1908.) 
Exceptions  to  the  latter  condition  may  be  made  in  some  cases  by  special  direction  of 
the  Department,  particularly  in  cases  of  persons  residing  abroad  as  representatives 
of  American  trade  and  commerce  and  as  missionaries  of  American  church  organiza- 
tions. 

The  applicant  should,  if  possible,  be  introduced  by  a  reputable  person  known  to 
the  office  which  takes  the  application,  or,  if  this  is  impossible,  he  should  be  required 
to  identify  himself  by  satisfactory  documentary  evidence.  In  doubtful  cases  refer- 
ences to  persons  in  this  country  should  be  required,  so  that  the  Department  may 
make  proper  enquiries  concerning  the  appUcants. 

Emergency  passports  and  consular  registration  certificates  shoidd  not  be  accepted 
as  conclusive  evidence  of  citizenship.  In  this  relation  it  may  be  observed  that  in 
some  cases  such  documents  have  been  issued  hastily  and  without  proper  examina- 
tion into  the  citizenship  and  identity  of  the  applicants,  especially  during  the  period 
immediately  following  the  outbreak  of  the  present  European  war. 

NATIVE  AMERICAN  CITIZENS 

In  taking  the  passport  application  of  a  person  alleging  native  citizenship,  you 
should  require  the  applicant  to  submit  a  birth  certificate,  if  possible,  or  letters  or 
other  documents  satisfactorily  establishing  his  citizenship.  The  nature  of  the  evi- 
dence submitted  to  you  must  be  stated  in  the  passport  application. 

NATURALIZED  AMERICAN  CITIZENS 

A  person  claiming  citizenship  by  naturalization  must  be  required  to  submit  his  cer- 
tificate of  naturalization  or  a  certified  copy  of  the  court  record  thereof,  or  an  old  passport 
issued  by  the  Department,  and  his  passport  application  must  state  the  name  of  the  court 


CIRCULAR  INSTRUCTION  CONCERNING  NEW  PASSPORT  REGULATIONS      513 

in  which  he  obtained  naturalization  and  the  date  thereof.  If  any  such  person  is  unable 
to  submit  such  documentary  evidence  of  his  naturalization,  you  should  inform  the 
Department  of  the  name  of  the  court  in  which  he  alleges  that  he  obtained  naturaliza- 
tion and  the  date  thereof,  so  that  the  Department  may  take  steps  to  verify  iiia 
allegation. 

PHOTOGRAPHS  OF  APPLICANTS 

Each  applicant  for  a  passport  must  submit  triplicate  unmounted  photographs 
of  himself  on  thin  paper,  not  larger  than  three  by  three  inches  in  size,  one  to  be 
attached  to  each  of  his  applications  by  the  officer  before  whom  they  are  executed, 
and  the  third  to  be  attached  to  the  passport  and  to  be  partlj'  stamped  with  an  im- 
pression of  the  seal  of  the  issuing  office. 

An  application  forwarded  to  the  Department  for  a  regular  passport  must  neces- 
sarily be  accompanied  by  a  loose  photograph  of  the  applicant  in  addition  to  the  one 
attached  to  the  application,  so  that  the  former  may  be  attached  to  the  passport, 
with  an  impression  of  the  Department's  seal. 

NAMES  OF  COUNTRIES  APPLICANTS  EXPECT  TO  VISIT  AND  OBJECTS 

OF   VISITS 

Each  application  must  state  the  names  of  the  countries  which  the  applicant  ex- 
pects to  visit  and  the  object  of  the  visit.  The  statement  concerning  the  object  of 
the  applicant's  visit  should  be  general  in  form,  thus:  "commercial  business," 
"health,"  "study,"  "visiting  relatives,"  "recreation,"  "settling  an  estate,"  etc. 

With  reference  to  the  statement  "commercial  business,"  you  are  instructed  that 
no  mention  should  be  made  of  the  exact  nature  of  the  business  in  which  the  applicant 
is  engaged;  that  is,  it  would  be  improper  to  state  the  name  or  names  of  the  concerns 
which  the  applicant  represents  or  the  nature  of  the  goods  which  he  expects  to  pur- 
chase or  sell.  (The  form  of  the  statement  written  upon  the  faces  of  passports  is 
quoted  below.) 

ISSUANCE  OF  EMERGENCY  PASSPORTS 

Diplomatic  and  consular  officers  authorized  to  issue  emergency  passports  should 
exercise  the  greatest  caution  in  doing  so,  and  should  require  of  each  applicant  un- 
questionable evidence  of  his  citizenship  and  identity.  A  photograph  of  the  applicant 
should  be  attached  to  the  passport  (in  the  upper  left  hand  comer)  with  an  impression 
of  the  seal  of  the  issuing  office,  which  should  be  so  placed  as  partly  to  cover  one  side 
but  not  the  features.  The  following  statement  should  be  made  upon  the  face  of 
the  passport  (in  the  upper  right  hand  comer) : 

"The  person  to  whom  this  passport  is  issued  has  declared  under  oath  that  he  de- 
sires it  for  use  in  visiting  the  countries  hereinafter  named,  for  the  following  objects: 


(Name  of  coimtry.)  (Object  of  visit.) 


(Name  of  country.)  (Object  of  visit.) 


(Name  of  country.)  (Object  of  visit.) 


514  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

"  This  passport  is  not  valid  for  use  in  other  countries  except  for  necessary  transit 
to  or  from  the  countries  named." 

Rubber  stamps  should  be  used  in  making  the  above  form  of  statement. 

When  an  American  citizen,  sojourning  abroad  and  holding  a  passport  limited  for 
use  in  certain  countries,  finds  it  necessary  to  visit  another  country,  not  mentioned 
therein,  he  may  turn  in  the  passport  which  he  holds  at  the  American  Embassy,  Lega- 
tion, or  Consulate  authorized  to  issue  emergency  passports  in  the  country  where 
he  is  sojourning,  and  obtain  an  emergency  passport  limited  for  use  in  the  particular 
trip  which  he  has  in  view.  Upon  his  return,  he  may  surrender  such  emergency  pass- 
port and  recover  the  passport  which  he  previously  held.  It  is  not  proper  for  one 
person  to  hold  two  valid  passports. 

In  the  issuance  of  emergency  passports  under  the  conditions  just  mentioned  the 
same  rules  should  be  observed  as  in  the  issuance  of  emergency  passports  in  general. 

AMENDMENT  OF  PASSPORTS  ISSUED  PRIOR  TO  THESE  REGULATIONS 

American  citizens  holding  valid  passports  issued  prior  to  these  regulations  should 
be  notified,  through  the  press  or  otherwise,  to  present  themselves  to  a  diplomatic  or 
consular  office  within  two  weeks,  if  possible,  so  that  their  passports  may  be  amended 
to  conform  with  the  new  passport  regulations.  The  Department  has  reason  to  be- 
lieve that  there  are  some  persons  abroad  holding  emergency,  and  perhaps  Depart- 
mental, passports  to  which  they  are  not  entitled.  Therefore,  when  a  passport  is 
presented  to  you  for  amendment  in  accordance  with  the  new  regulations,  you  should 
examine  the  holder  carefully  and  require  him  to  submit  the  same  evidence  of  his 
citizenship  and  identity  which  would  be  required  of  him  were  he  making  an  original 
application  for  a  passport.  If  any  holder  of  a  passport  appears  to  be  not  entitled 
to  it,  you  should  retain  the  passport,  investigate  the  case,  and  inform  the  Department 
fully  of  the  pertinent  facts  and  your  conclusions. 

AU  holders  of  emergency  passports  who  expect  to  continue  their  residence  abroad 
for  a  considerable  period,  should  be  notified  to  apply  forthwith  for  regular  Depart- 
mental passports. 

W.  J.  Bryan. 

On  Feb.  8,  1915  the  Department  issued  new  circular  instructions  to  diplomatic 
and  consular  officers  advising  them  of  the  changes  effected  by  the  passport  regula- 
tions of  January  12,  1915,  particularly  the  six-months'  duration  of  the  passport, 
with  possibility  of  two  renewals,  and  empowering  them  to  amend  the  statement  in 
the  passport  concerning  the  countries  to  be  visited  and  the  objects  of  the  visits. 
The  power  to  thus  amend  regular  passports  dispenses  to  a  considerable  degree  with 
the  necessity  for  issuing  emergency  passports,  as  authorized  in  the  general  instructions 
of  December  21,  1914. 

OTHER   FORMS  OF  EVIDENCING   CITIZENSHIP 

§  221.  Certificate  of  Naturalization. 

The  certificate  of  naturafization  as  an  evidence  of  citizenship  em- 
anates from  the  judicial  department  of  the  government,  and  is  not 


CERTIFICATE   OF   REGISTRATION  515 

used  SO  freely  as  the  passport  as  an  international  warrant  of  citizen- 
ship or  protection.  It  is,  when  properly  issued,  the  best  evidence 
of  naturalization,  and  its  presentation  is  the  customary  method  by 
which  naturalized  citizens  before  international  commissions  estab- 
lish their  citizenship.  While  occasionally  presented  to  foreign  govern- 
ments as  an  evidence  of  American  citizenship,  it  is  most  frequently 
used  as  evidence  before  the  Department  of  State  or  before  American 
diplomatic  and  consular  officers  as  a  title  to  a  passport  or  to  diplo- 
matic protection  or  registration.  A  naturalized  citizen  applying  for 
a  passport  must  present  his  certificate  of  naturalization,  or  a  duly 
certified  copy  of  the  court  record  thereof.  Under  an  amendment 
of  paragraph  154  of  the  Instructions  to  Diplomatic  Officers,  diplomatic 
officers  may  receive  an  old  passport  in  Ueu  of  a  certificate  of  naturaliza- 
tion as  prima  facie  evidence  that  the  applicant's  citizenship  was  es- 
tablished, and  issue  thereon  an  emergency  passport.  This  applies 
also  to  persons  who  claim  citizenship  through  the  naturalization  of 
the  parent.  The  extent  to  which  a  certificate  of  naturalization  is 
binding  upon  municipal  and  international  courts  and  upon  the  Depart- 
ment of  State  and  foreign  governments  as  a  proof  of  citizenship  and 
the  circumstances  under  which  it  may  be  impeached  will  be  discussed 
presently.^ 

§  222.  Certificate  of  Registration. 

Certificates  of  registration  are  issued  by  consuls  to  American  citi- 
zens who  register  at  the  consulates  in  conformity  with  paragraph  172 
of  the  Consular  Regulations,  as  amended  by  the  Executive  Order  of 
April  8,  1907.^  Following  the  practice  of  several  European  countries, 
notably  Belgium,  Spain  and  Portugal,  the  Department  of  State  has 
encouraged  the  registration  of  American  citizens  resident  abroad  by 
providing  a  registration  book  in  each  consulate.  Such  registration 
has  important  legal  effects  under  the  statute  of  the  United  States 
by  which  American  women  abroad,  the  widows  or  divorcees  of  aliens, 
and  foreign-bom  women,  the  widows  or  divorcees  of  American  citi- 
zens, may  resume  or  retain,  as  the  case  may  be,  their  American  citizen- 

*  Infra,  §  224  et  seq. 

*  Circular,  April  19,  1907,  Registration  of  American  Citizens,  For.  Rel.,  1907,  1,  6. 


516  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

ship  by  registration  in  an  American  consulate.  So,  likewise,  children 
bom  abroad  who  are  citizens  under  §  1993  of  the  Revised  Statutes 
must,  upon  reaching  the  age  of  eighteen,  in  order  to  receive  the  pro- 
tection of  this  government,  record  at  a  consulate  their  intention  to 
become  residents  and  remain  citizens  of  the  United  States.'  The 
practical  effects  of  consular  registration,  to  which  all  American  citi- 
zens resident  abroad  are  invited,  are  hardly  less  important.  Registra- 
tion operates  as  a  definite  avowal  or  election  of  citizenship  and  is  an 
important  factor  in  overcoming  the  presumption  of  expatriation. 
Besides,  it  faciUtates  and  expedites  protection  abroad  in  case  of 
need,  inasmuch  as  the  identity  and  citizenship  of  the  person 
desiring  protection  are  at  once  established  and  made  a  matter  of 
record. 

The  same  general  principles  govern  applications  for  registry  which 
govern  applications  for  passports.  The  appUcant  must  furnish  to 
the  consul  the  same  proof  of  citizenship  as  would  be  required  by  the 
Department  of  State  for  the  issuance  of  a  passport.^  Upon  satis- 
factory registration,  the  consul  is  authorized  to  issue  without  charge  ^ 
a  certificate  of  registration  for  use  with  the  authorities  of  the  place 
where  the  person  registered  is  residing.  The  certificates  are  good 
for  one  year  only,  and  may  be  renewed  annually,  provided  it  is  clearly 
shown  that  the  residence  abroad  has  not  assumed  a  permanent  char- 
acter. 

The  certificate  of  registration,  while  serving  the  important  inter- 
national purpose  of  establishing  the  identity  and  citizenship  of  the 
entitled  holder,  is  issued  rather  as  a  measure  of  supervision  or 
control  by  the  United  States  over  its  citizens  abroad,  particularly 
in  extraterritorial  countries,  and  as  an  aid  to  its  protective  func- 
tions. 

»  Sections  3,  4  and  6  of  the  Act  of  March  2,  1907,  Circulars,  April  19,  1907,  Regis- 
tration of  women  who  desire  to  resume  or  retain  American  citizenship,  and  Children 
of  citizens  born  abroad,  For.  Rel.,  1907,  I,  10,  9. 

^  See  the  rules  prescribed  by  the  Dept.  of  State  in  circular  of  November  30,  1907, 
and  March  2,  1908,  as  to  Applications  for  registration.  See  also  circular  of  June  21, 
1909. 

'  Circular  March  25,  1908.  The  charge  of  a  small  fee  is  now  contemplated  by  the 
Department. 


IMPEACHMENT   OF   CITIZENSHIP  517 

IMPEACHMENT   OF   CITIZENSHIP 

§  223.  Who  may  Impeach. 

The  conclusiveness  of  the  ordinary  evidences  of  citizenship,  the 
passport  and  the  certificate  of  naturahzation,  has  been  the  subject 
of  much  diplomatic  correspondence  during  the  last  fifty  years.  This 
government  has  uniformly  insisted  that  the  documents  it  issues  as 
certificates  of  citizenship  shall  be  considered  as  prima  fade  evidence 
of  lawful  citizenship.  While  admitting  the  possibility  of  foreign  au- 
thorities traversing  the  conclusively  evidentiary  character  of  the  pass- 
port or  certificate  of  naturalization,  b}'  showing  fraud  or  illegality, 
the  United  States,  as  has  been  said,  has  reserved  to  itself  the  exclu- 
sive right  to  determine  the  ultimate  validity  of  these  documents  and 
of  the  citizenship  of  the  persons  to  whom  they  are  issued. 

On  several  occasions  the  attempts  of  foreign  governments  to  im- 
peach the  validity  of  a  passport  duly  issued  by  the  Department  of 
State  have  called  forth  emphatic  protests  from  American  secretaries 
of  State.  ^  Diplomatic  difficulties  with  Mexico,  Austria-Hungary 
and  Russia  have  made  it  clear  that  the  United  States  will  not  admit 
the  right  either  of  administrative  or  judicial  officers  of  those  countries 
to  pass  upon  the  validity  of  passports  or  certificates  of  naturalization 
issued  by  the  United  States.  These  documents  may  be  questioned 
on  the  ground  that  they  have  been  fraudulenth'  obtained  or  are 
fraudulently  held,  but  even  then  the  determination  of  the  validity 
of  the  passport  is  within  the  competency  alone  of  the  Department 
of  State  and  not  of  the  local  authorities  abroad.  The  assumption 
by  such  local  authorities  of  the  right  to  ignore  the  evidence  of  the 
passport  and  to  ascertain  by  an  independent  municipal  investigation 
the  citizenship  of  an  alien,  an  American  citizen,  was  declared  by 
Secretary  of  State  Gresham  to  be  "incompatible  w^th  the  universally 
admitted  doctrine  that  a  state  is  the  sole  and  ultimate  judge  of  the 
citizenship  of  its  own  dependents,  and  is  competent  to  certify  to  the 
fact."    He  added: 

''It  is  neither  incumbent  upon  the  bearer  to  prove  his  citizenship  by 

1  See  the  various  notes  of  Secretaries  Marcy,  Fish,  Evarts,  Foster,  Gresham  and 
Ohiey,  quoted  in  Moore's  Dig.  Ill,  985  et  aeq. 


518  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

extraneous  evidence  at  the  will  of  the  country  of  his  sojourn;  nor  upon 
the  certifying  government  to  support  its  official  attestation  of  the  fact 
of  the  citizenship  by  collateral  proof  under  the  municipal  requirements 
of  another  country  ....  Should  the  Austro-Hungarian  authorities 
have  reason  to  believe  that  they  [passports]  are  fraudulently  held  by 
others  than  the  persons  to  whom  they  were  lawfully  issued  or  that  the 
holders  have  obtained  naturalization  in  fraud  of  the  laws  of  the  United 
States,  or  claim  privileges  of  citizenship  not  granted  by  the  treaty  of 
naturalization  between  the  two  countries,  the  facts  should  at  once  be 
brought  to  the  notice  of  the  Government  of  the  United  States  through 
its  accredited  envoy  in  Austria-Hungary."  i 

The  naturalization  treaties  with  some  of  the  German  states  make 
five  years'  residence  as  well  as  naturalization  conditions  precedent 
to  a  recognition  of  a  change  of  allegiance.  Inasmuch  as  the  passport 
of  a  naturalized  citizen  does  not  disclose  the  statute  under  which  he 
was  naturalized — which  may  not  be  predicated  upon  a  five  years' 
residence,  e.  g.,  in  the  case  of  minors,  honorably  discharged  soldiers, 
seamen,  etc. — the  allegation  of  a  failure  to  comply  with  the  require- 
ment of  five  years'  residence  must  be  heard  as  an  objection  to  the  con- 
clusively evidentiary  character  of  the  passport,  and  in  the  absence  of 
disrespect  to  the  passport  as  prima  jade  evidence  of  citizenship,  the 
competency  of  a  German  court  to  conduct  an  independent  investiga- 
tion upon  the  question  of  five  years'  residence  cannot,  it  would  seem, 
be  contested.^ 

The  United  States  has  always  insisted  that  it  alone  was  competent 
to  pass  upon  the  question  as  to  whether  a  passport  was  fraudulently 
obtained.  If  foreign  governments  could  pass  upon  the  question  of 
fraud  in  obtaining  a  passport,  they  would  in  effect  pass  upon  the  legal- 
ity of  the  act  of  naturalization  itself,  an  assumption  which  the  United 
States  has  always  vigorously  contested.^ 

The  passport  must  be  accepted  as  'prima  jade  proof  of  citizenship 

1  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Tripp,  min.  to  Austria-Hungary,  Sept.  4, 
1893,  For.  Rel.,  1893,  23-24,  quoted  in  Moore's  Dig.  Ill,  988-989.  The  Austrian 
foreign  office  fully  conceded  the  principle  contended  for  by  Mr.  Gresham. 

2  Mr.  OIney,  Sec'y  of  State,  to  Mr.  Jackson,  charge  at  Berlin,  Feb.  13,  1896,  For. 
Rel.,  1895,  520-523  {In  re  claim  by  WUrtemberg  authorities  of  right  to  require  other 
evidence  of  citizenship  than  passports).  Extracts  quoted  in  Moroe's  Dig.  Ill, 
993-994. 

'  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Harris,  min.  to  Austria-Hungary,  Nov.  7,  1899, 
For.  Rel.,  1899,  78,  Passport  of  John  Wilson.    Quoted  in  Moore's  Dig.  Ill,  1001. 


NATURE    OF   CERTIFICATE    OF   NATURALIZATION  519 

by  the  consular  and  diplomatic  officers  of  the  United  States/  although 
upon  an  appHcation  for  the  issuance  of  a  passport,  the  diplomatic 
officer  can  question  the  validity  of  a  naturahzation  certificate  and 
comphance  with  its  essential  conditions. - 

What  has  been  said  above  regarding  the  irapeachabihty  of  the  pass- 
port appUes  equally  to  the  certificate  of  naturalization,  on  which, 
in  the  case  of  naturalized  citizens,  it  is  practically  always  issued.  Thus, 
the  United  States  has  uniformly  contested  any  assumption  of  right 
by  the  administrative  or  judicial  authorities  of  foreign  countries  to 
pass  upon  the  legality  or  vahdity  of  a  certificate  of  naturalization, 
that  being,  so  it  has  been  insisted,  the  exclusive  function  of  the  ap- 
propriate authorities  of  the  United  States.^ 

§  224.  Nature  of  Certificate  of  Naturalization.  Its  Character  as  Res 
Adjudicata. 
A  certificate  of  naturalization  is  not  only  an  evidence  of  citizen- 
ship, but,  emanating  from  the  judicial  department  of  the  government, 
it  is  also  the  evidence  of  a  judgment.^  Out  of  this  fact  has  arisen 
some  confusion  as  to  the  sacredness  of  the  certificate  of  naturaliza- 
tion,^ its  character  as  res  adjudicata,  and  the  extent  to  which  it  is  bind- 

'  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Hardy,  min.  to  Switzerland,  April  2.3,  1901, 
Application  of  Car!  F.  Kupfer,  For.  Rel.,  1901,  508-509. 

-  Mr.  Leishman  to  Mr.  Hay,  May  17,  1901,  and  Mr.  Hill,  Act'g  Sec'y  of  State, 
to  Mr.  Leishman,  June  14,  1901,  For.  Rel.,  1901,  519-520. 

'  The  Benich  case  in  Austria,  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Tripp,  Sept.  4, 
1893,  For.  Rel.,  1893,  23-25.  See  also  For.  Rel.,  1894,  3(>-46,  For.  Rel.,  1895,  514-523, 
For.  Rel.,  1895,  8-12,  13-20;  Sec'y  Hay  to  Mr.  Harris,  Nov.  7,  1899,  For.  Rel.,  1899, 
78,  Moore's  Dig.  Ill,  §  424.  See  also  the  Beauffremont  decision  in  Belgium,  9  Clunet 
(1882),  364,  Von  Bar  (Gillespie's  trans.),  158  et  seq.,  and  Morse,  Citizenship,  92. 

*  In  reality  the  court  acts  as  an  administrative  bodj',  the  proceedings  being  in 
the  nature  of  non-contentious  jurisdiction.  (See  Pitnej',  J.,  in  Johannessen  v.  U.  S., 
225  U.  S.  227,  237.)  It  is  in  the  nature  of  a  judgment  in  rem,  though  the  application 
is  submitted  with  ex  parte  proofs.  The  Government  rarely  appears,  although  by  §  11 
of  the  Act  of  June  29,  1906,  the  Government  is  given  the  right  to  appear,  and  to  cross- 
e.xamine  the  petitioner  and  witnesses  and  produce  evidence  in  opposition  to  a  grant  of 
naturalization.  See  also  14  Opin,  Atty.  Gen.  509,  and  the  exhaustive  opinion  of 
the  late  Spanish  Treaty  CI.  Com.  in  Ruiz  v.  U.  S.,  printed  in  Van  Djnie,  XaturaHza- 
tion,  151. 

^  Attorney-General  Akerman,  in  13  Opin.  Atty.  Gen.  376,  erroneously  held  that 
it  waa  a  judgment  binding  only  on  parties  and  their  privies;  hence  that  the  U.  S.  waa 


520  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

ing  on  municipal  courts,  on  international  courts,  and  on  the  executive 
branch  of  the  government. 

§  225.  Conclusiveness  upon  Municipal  Courts. 

Before  municipal  courts  of  the  United  States  a  decree  or  order  of 
naturalization  cannot  be  impeached  collaterally.^  It  is  presumed 
to  be  conclusive,  and  complete  evidence  of  its  own  validity.  Yet 
in  the  matter  of  the  collateral  attack  of  judgments,  the  following 
distinction  has  been  drawn:  they  may  be  impeached  by  facts  involving 
fraud  or  collusion  which  were  not  before  the  court  or  involved  in  the 
issue  or  matter  upon  which  the  judgment  was  rendered,  but  they 
may  not  be  impeached  for  matters  which  were  necessarily  before  the 
court  and  passed  upon.-  If,  however,  the  certificate  is  void  on  its 
face,  e.  g.,  if  issued  to  a  Japanese^  or  Chinese''  subject,  the  certificate 
of  naturalization  may  be  treated  as  void  in  any  proceedings. 

Certificates  of  naturalization,  fraudulently  acquired  or  held,  may, 
as  will  be  seen,  be  cancelled  in  direct  proceedings  to  that  end.  The 
federal  statutes  also  provide  for  the  criminal  prosecution  of  false  per- 
sonation, false  swearing  and  forgery  in  naturalization  proceedings, 
as  well  as  of  the  uttering,  selling  and  use  of  false  naturalization  papers.^ 

It  has  been  held  generally  that  only  the  United  States  can  proceed 
judicially  to  set  aside  or  cancel  a  certificate  of  naturalization,^  although 
it  was  not  definitely  determined  before  the  Act  of  June  29,  1906,  which 
officers  might  bring  such  an  action.    Section  15  of  the  Act  of  June  29, 


not  concluded  by  a  fraudulent  certificate  of  naturalization.  The  true  ground  is 
rather  that  a  judgment  in  rem  may  be  attacked  for  fraud,  or  that,  being  an  ex  parte 
proceeding,  the  U.  S.  is  not  concluded  by  the  certificate  granted.  Johannessen  v. 
U.  S.,  225  U.  S.  227,  237.    See  Morse,  Citizenship,  §  191. 

'  Moore's  Dig.  Ill,  §  422  and  decisions  there  cited.  Van  Dyne,  Naturalization, 
134-141;  H.  Doc.  326,  59th  Cong.,  2d  sess.,  1.30-133. 

2  U.  S.  V.  The  Acorn,  2  Abbott's  U.  S.  Rep.  434,  445. 

3  In  re  Yamashita,  30  Wash.  234,  70  Pac.  Rep.  482. 

*  In  re  Gee  Hop,  71  Fed.  274;  In  re  Hong  Yen  Chang,  84  Cal.  163;  21  Opin.  Atty. 
Gen.  ,581;  Moore's  Dig.  HI,  501. 

^  Moore's  Dig.  Ill,  499. 

«  Pintsch  Compressing  Co.  v.  Bergin,  84  Fed.  140;  U.  S.  v.  Norsch,  42  Fed.  417; 
U.  S.  V.  Gleason,  78  Fed.  396,  is  doubtful  law.  See  other  cases  cited  in  H.  Doc.  326, 
59th  Cong.,  2d  sess.,  132. 


CONCLUSIVENESS    UPON    MUNICIPAL   COURTS  521 

1906,  makes  specific  provision  for  the  bringing  of  such  suits  by  the 
Department  of  Justice.^  According  to  a  recent  decision,  it  would 
seem  that  a  State  cannot  impeach  naturahzation.^  It  is  estabhshea 
that  private  parties,  exclusive  of  the  naturalized  person  himself,  may 
not  impeach  the  record  of  naturalization.^  The  judgment  may  be 
impeached  on  the  same  grounds  that  would  render  any  judgment  of 
a  court  invalid.  The  usual  ground  is  fraud  or  illegality  in  the  procure- 
ment of  the  naturalization.'^ 

In  European  countries,  municipal  courts  frequently  have  to  decide 
upon  the  effect  to  be  given  to  a  foreign  judgment  of  naturalization, 
and  the  general  rule  as  to  judgments  appears  to  be  followed.  For 
example,  if  the  foreign  court  was  without  jurisdiction  of  person  or 
subject-matter,  recognition  of  the  judgment  will  be  refused.  Similarly, 
if  the  foreign  naturalization  is  contrary  to  the  law  or  public  policy 
of  the  jurisdictional  state,  the  foreign  judgment  will  be  denied  validity.'' 
In  the  absence  of  treaty,  the  original  home  state  of  the  naturalized 
person  may  not  admit  the  validity  of  or  give  effect  to  his  foreign  nat- 
uralization, if  obtained  in  violation  of  its  law.  This  is  quite  different 
from  directly  declaring  a  foreign  naturalization  null,  which  would 
be  an  invasion  of  the  sovereign  rights  of  a  foreign  state.  It  would 
seem  true,  also,  as  in  the  case  of  all  foreign  judgments,  that  fraud 
in  its  procurement  may  be  set  up  as  a  ground  of  impeachment,  and 
the  local  court  will  refuse  to  recognize  and  enforce  a  judgment  of  nat- 
uralization obtained  by  fraud.^  This  also  is  the  standpoint  assumed 
by  international  tribunals  in  passing  upon  the  evidentiary  character 
of  a  certificate  of  naturalization. 

*  34  Stat.  L.  596.  The  Act  is  set  out  in  Van  Dyne,  Naturalization,  417  et  seq.  and 
the  proceedings  under  §  15  are  discussed  at  pp.  34-36,  135-141.  See  U.  S.  v.  Nesbit, 
168  Fed.  1005;  U.  S.  ;>.  Simon,  170  Fed.  680;  U.  S.  v.  Meyer,  170  Fed.  983;  U.  S.  v. 
Mansour,  170  Fed.  671;  U.  S.  v.  Luria,  184  Fed.  643,  231  U.  S.  9;  U.  S.  v.  Spohrer, 
175  Fed.  440;  Johannessen  v.  U.  S.,  225  U.  S.  227. 
Peterson  v.  State  (1905),  89  S.  W.  81. 
Cases  quoted  and  cited  in  H.  Doc.  326,  op.  cil.,  132-133. 

H.  Doc.  326,  59th  Cong.,  2d  sess.,  133;  Act  of  June  29,  1906,  §  15,  infra,  §  228  et 
seq. 

5  Bar,  163-165. 

« Story,  Conflict  of  laws,  608;  Ruiz  v.  U.  S.,  No.  112,  Span.  Treaty  CI.  Com.,  De- 
cision printed  in  Van  Dyne,  Naturalization,  167-168. 


522  THE   DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

§  226.  The  Practice  of  International  Tribunals  of  Arbitration. 

Whatever  the  conclusive  force  of  judgments  of  naturalization 
under  municipal  laws  of  the  country  where  granted,  interna- 
tional tribunals  have  often  asserted  and  exercised  the  right  to  de- 
termine for  themselves  the  citizenship  of  claimants  from  all  the  facts 
presented.^ 

These  international  tribunals,  with  practically  unbroken  uniformity, 
have  held  that  they  were  not  conclusively  bound  by  a  certificate  of 
naturalization,  but,  on  an  allegation  of  fraud,  could  go  behind  the 
certificate  to  examine  the  antecedent  facts  on  which  it  was  granted. 
Such  a  certificate  has  been  held  to  be  prima  facie  evidence  of  citizen- 
ship,^ and  in  the  absence  of  proof  of  fraud,  it  has  been  accepted  as 
conclusive  evidence  of  its  own  validity.^  A  mere  error  or  irregularity 
or  honest  failure  to  comply  fully  with  the  laws  of  the  United  States 
has  not  been  generally  deemed  a  sufficient  ground  to  impeach  the 
evidentiary  force  of  the  certificate  of  naturalization,  but  some  inten- 
tional and  dishonest  misrepresentation  or  suppression  of  material 
facts  by  the  party  obtaining  the  naturalization  has  usualty  been  re- 
quired to  effect  this  end.  Nevertheless,  in  some  cases,  e.  g.,  in  the 
Medina  case  before  the  United  States-Costa  Rican  commission  of 
1860  and  in  the  Flutie  case  before  the  United  States- Venezuelan  com- 
mission of  1903,  fraud  was  not  considered  essential  to  denial  of  a  claim 
of  citizenship,  but  misrepresentation  or  proved  non-compliance  with 
the  conditions  for  naturalization  was  considered  sufficient  to  over- 
come the  presumptive  evidence  of  the  certificate.  Some  exceedingly 
able  opinions  on  this  question  have  been  written,  and  particular  merit 
is  found  in  the  decisions  of  Umpire  Bertinatti  in  the  case  of  Medina 
before  the  United  States-Costa  Rican  Commission  of  1860  ^  and  of 


1  Flutie  (U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  38,  42,  citing  Medina  (U.  S.) 
f.  Costa  Rica,  Moore's  Arb.  2587;  Laurent  (Gt.  Brit.)  v.  U.  S.,  ibid.  2671;  Lizardi 
(U.  S.)  V.  Mexico,  ibid.  2589;  Kuhnagel  (France)  v.  U.  S.,  ibid.  2647;  Angarica  (U.  S.) 
V.  Spain,  ibid.  2621;  Criado  (U.  S.)  v.  Spain,  ibid.  2624. 

2  Delgado  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2590-2592;  Sprotto  (U.  S.) 
V.  Mexico,  July  4,  1868,  ibid.  2717. 

3  Delgado  (U.  S.)  v.  Spain,  Feb.  12,  1871,  ibid.  2590;  Madan  (U.  S.)  v.  Spain,  ibid. 
2638,  2641  (under  agreement  of  Dec.  14,  1882,  infra). 

'  Moore's  Arb.  2583,  at  pp.  2586-2589. 


THE    PRACTICE    OF   INTERNATIONAL   TRIBUNALS    OF   ARBITRATION     523 

the  recent  Spanish  Treaty  Claims  Commission  in  the  case  of  Ruiz  t-. 
United  States,  No.  112.^ 

In  the  decision  of  Umpire  Bertinatti  in  the  case  of  Medina  v.  Costa 
Rica,-  it  was  held  that  the  judgment  of  an  American  court  was  not 
binding  on  Costa  Rica,  and  that  while  a  duly  issued  certificate  of 
naturalization  is  presumptive  evidence  of  its  validity,  "the  presump- 
tion of  truth  must  yield  to  truth  itself,"  and  where  the  existence  of 
facts  is  shown,  which,  had  they  been  known,  would  cause  the  applica- 
tion for  naturalization  to  have  been  rejected,  e.  g.,  a  residence  in  the 
United  States  much  shorter  than  the  five  years  required  by  statute, 
the  certificate  of  naturalization  will  be  considered  incompetent  to  con- 
fer citizenship. 

The  United  States-Mexican  commission  of  1868  dismissed  the  claim 
of  Perez  ^  because  of  his  failure,  as  an  alleged  naturalized  citizen, 
to  comply  with  the  residence  requirements  of  our  naturalization  stat- 
utes, notwithstanding  his  possession  of  a  certificate  of  naturalization. 
Mr.  Thornton,  umpire  of  that  same  commission,  held  that  the  tri- 
bunal was  not  bound  to  admit  the  citizenship  of  a  claimant  when 
the  evidence  showed  that  his  certificate  of  naturalization  had  been 
obtained  by  the  false  swearing  of  certain  witnesses  before  the  munici- 
pal court  which  granted  naturalization.^ 

The  question  of  the  finality  of  a  certificate  of  naturalization  was 
argued  very  fully  before  the  United  States-Spanish  commission  under 
the  protocol  of  February  12,  1871.  By  that  protocol  it  was  provided 
that  Spain  shall  have  the  right  to  "traverse  the  allegation  of  American 
citizenship,  and  thereupon  competent  and  sufficient  proof  thereof 
will  be  required."  In  the  case  of  Delgado,^  Umpire  Bartholdi  de- 
clined to  inquire  into  the  validity  of  the  claimant's  naturalization, 

'  Reprinted  in  Van  Dyne,  Naturalization,  144-178.  Commissioner  Maury's  able 
dissenting  opinion  is  also  worthy  of  note,  ibid.  178-189.  Valuable  briefs  on  the 
question  were  filed  by  attorneys  for  the  claimants  and  by  the  Government  in  the 
cases  of  Adolphus  Torres  v.  U.  S.,  No.  45  and  Rita  L.  de  Ruiz  et  al.  v.  U.  S.,  No.  112. 
Briefs  of  the  Spanish  Treaty  Claims  Commission,  v.  7. 

-  Medina  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  Moore's  Arb.  2583,  2587. 

'  Perez  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2719  (Wadsworth,  commissioner). 

*  Lizardi  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2589. 

5  Delgado  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2590-2592. 


524  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

it  appearing  that  he  had  resided  in  the  United  States  over  five  years 
and  no  charge  of  fraud  having  been  made.  In  a  second  case,  Ortega/ 
a  failure  to  comply  with  the  naturahzation  laws  was  clear.  The  um- 
pire, therefore,  dismissed  the  claim  and  refused  to  be  bound  by  the 
certificate  of  naturalization.  This  amounted  to  a  denial  of  the  position 
of  the  advocate  of  the  United  States  that  the  certificate  of  naturaliza- 
tion must  be  accepted  as  final.  The  interposition  of  the  Department 
of  State  being  invoked.  Secretary  Evarts  first  expressed  the  opinion 
that  the  powers  of  the  Commission  were  not  "judicial,"  and  that 
in  effect  the  Commission  could  not  question  a  certificate  of  naturahza- 
tion. Baron  Blanc,  Bartholdi's  successor  as  umpire,  in  the  case  of 
Dominguez  -  held  that  it  was  his  duty  to  determine  whether  the  cer- 
tificate of  naturalization  was  procured  by  fraud  or  was  granted  in 
violation  of  treaty  stipulations  or  of  the  rules  of  international  law, 
but  that  Dominguez's  absence  from  the  United  States  prior  to  his 
admission  to  citizenship  did  not  work  a  change  of  legal  residence; 
and  assuming  that  the  naturalization  court  had  taken  this  view,  it 
must  prevail  so  long  as  it  is  unreversed  by  an  American  court. ^  The 
Spanish  Arbitrator,  Marquis  Potestad,  protested  against  the  ruling 
that  the  decision  of  an  American  court  is  final,  and  against  a  proposi- 
tion of  the  umpire  that  the  tribunals  of  the  United  States  are  the  sole 
interpreters  of  the  laws  of  the  country.  Secretary  Evarts,  again  called 
upon,  held  that  the  tribunal,  as  an  international  judicial  bodj^,  could 
"bring  under  judgment  the  decisions  of  local  courts  of  both  nations." 
He  thus  in  effect  upheld  the  protest  of  Marquis  Potestad.  When 
Count  Lewenhaupt  succeeded  Baron  Blanc  as  arbitrator,  the  whole 
question  was  reargued."*  In  the  case  of  Buzzi,^  the  umpire  decided 
that  the  claimant  had  no  right  to  appear  as  an  American  citizen,  since 
it  was  shown  that  during  the  five  years  immediately  preceding  his 
naturalization  he  had  lived  about  four  and  a  half  years  in  Cuba.  Sec- 
retary of  State  Blaine,  who  had  succeeded  Mr.  Evarts,   instructed 

1  Ortega  (U.  S.)  v.  Spain,  Moore's  Arb.  2592. 
>  Dominguez  (U.  S.)  v.  Spain,  ibid.  2595-2597. 

'  The  history  of  this  question  before  the  Commission  is  presented  by  Mr.  Moore 
in  his  Digest,  III,  506-509.    See  also  Moore's  Arb,  2593  el  seq. 
*  Moore's  Arb.  2601-2613. 
» Buzzi  (U.  S.)  V.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2613. 


THE    PRACTICE   OF   INTERNATIONAL   TRIBUNALS    OF   ARBITRATION     525 

the  American  counsel  to  state  that  the  United  States  could  not  accept 
the  judgment  as  within  the  competence  of  the  umpire  to  render,  and 
that  a  duly  issued  certificate  of  naturalization  was  the  judgment  of 
a  court,  which  could  not  be  reversed  or  reviewed  by  the  Executive 
or  by  an  international  commission.^ 

Secretary  Frelinghuysen,  Mr.  Blaine's  successor,  did  not  adhere 
to  the  radical  position  of  Secretary  Blaine,  but,  while  insistmg  that 
the  Department  had  conferred  no  power  on  the  Commission  to  ex- 
amine into  the  object  or  motive  of  an  applicant  in  seeking  naturaliza- 
tion nor  to  make  actual  presence  in  the  United  States  for  five  years 
immediately  preceding  naturalization  a  requisite,  nevertheless  admitted 
that  a  certificate  of  naturalization  may  be  proven  to  have  been  obtained 
fraudulently,  and  added  that  the  certificate  could  only  be  impeached 

"by  showing  that  the  court  which  granted  it  was  without  jurisdiction, 
or  by  showing,  in  conformity  with  the  adjudications  of  the  courts  of  the 
United  States  on  that  topic,  that  fraud,  consisting  of  intentional  and 
dishonest  misrepresentation  or  suppression  of  material  facts  by  the 
party  obtaining  the  judgment,  was  practiced  upon  it,  or  that  the  naturali- 
zation was  granted  in  violation  of  a  treaty  stipulation  or  of  a  rule  of 
international  law."  2 

This  was  accepted  as  a  binding  rule  by  the  Commission,  and  several 
claims  of  alleged  naturalized  citizens  were  dismissed  on  one  or  other 
of  the  above  grounds.^  In  several  other  cases  it  was  held  that  there 
was  no  proof  of  intentional  misrepresentation  or  fraud  within  the  mean- 
ing of  the  rule  adopted,  and  that  claimants  were  entitled  to  appear 
as  citizens  of  the  United  States.* 

The  French-United  States  mixed  commission  under  the  treaty  of 
January  15,  1880,  held  that  they  had  the  right  to  examine  the  original 

1  Moore's  Arb.  2618.  The  radical  position  of  Mr.  Blaine  has  been  generally  dis- 
approved. 

2  Moore's  Arb.  2619-2621. 

3  Angarica  (U.  S.)  v.  Spain,  ibid.  2621,  2624;  Criado,  ibid.  2624,  2626.  See  also 
cases  of  Buzzi,  and  Ortega,  supra. 

*  Zenea,  Moore's  Arb.  2626  (held  no  fraud,  although  naturalized  before  he  was  21; 
see  Moore's  comment,  ibid.  2629);  Zaldivar,  ibid.  2630  (suspicion  of  irregularity, 
but  no  fraud);  Govin  y  Pinto,  ibid.  2635;  Madan,  ibid.  2638,  2642;  Antonio  M.  Mora, 
ibid.  2642,  2645  (burden  of  proof  on  Spain);  Rozas,  ibid.  2646;  IVIontejo,  ibid.  2643. 
See  the  statements  of  the  Marquis  de  Potestad,  Spanish  Arbitrator,  on  these  claims, 
ibid.  2631-2635. 


526  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

proceedings  for  naturalization,  and  finding  that  the  certificate  of 
naturalization  was  obtained  by  misrepresentation  of  material  facts, 
they  held  it  to  be  null  and  void.^ 

In  the  Flutie  case  before  the  United  States-Venezuelan  commis- 
sion of  1903,  in  an  able  opinion,  it  was  held  that  a  certificate  of  natural- 
ization is  not  binding  on  an  international  commission  to  establish 
the  citizenship  of  a  claimant  where  the  facts  show  that  the  neces- 
sary prerequisites  for  granting  the  certificate  were  not  fulfilled  by  the 
applicant  for  naturalization.^ 

The  recent  Spanish  Claims  Commission  heard  extended  and  able 
arguments  on  the  question  now  under  discussion  in  the  cases  of  Torres 
and  Ruiz.  In  an  elaborate  opinion  in  the  Ruiz  case,  after  reviewing 
decisions  of  other  commissions,  they  held : 

"  The  judgment  of  naturalization  is  prima  facie  evidence  of  its  regularity 
and  will  be  given  full  faith  and  credit  until  the  defendant  overcomes  its 
conclusiveness  by  proof.  The  degree  of  proof  which  will  constitute  a 
sufficient  demonstration  by  the  defense  in  cases  of  fraudulent  naturali- 
zation must  necessarily  rest  in  the  discretion  of  the  Commission.  .  .  . 
The  burden  upon  the  defendant  in  this  case  is  to  prove  the  legal  fraud 
perpetrated  by  claimant  in  the  procurement  of  his  naturalization  cer- 
tificate and  cannot  be  shifted  by  evidence  showing  errors  or  irregulari- 
ties in  the  proceedings  or  by  raising  a  doubt  merely  in  the  minds  of  the 
Commission.  The  proof  cannot  stop  at  showing  that  the  facts  made  to 
appear  to  the  satisfaction  of  the  court  which  granted  naturalization  were 
false.  It  must  at  least  go  to  the  extent  of  satisfying  the  Commission 
that  the  statements  and  representations  made  by  him  at  the  time  he 
filed  his  original  declaration  and  at  the  time  of  procuring  the  judgment 
were  false,  or  facts  must  be  proven  from  which  such  fraud  would  be 
implied,  and  it  must  appear  that  his  false  representations  and  the  repre- 
sentations procured  by  him  to  be  made  by  the  other  witnesses  were 
intentionally  used  by  him  for  the  purpose  of  deceiving  the  court  and 
thereby  securing  his  certificate  of  naturalization."  ' 

§  227.  Conclusiveness  upon  the  Executive. 

On  the  theory  that  naturalization,  while  a  judicial,  is  not  an  adversary 

>  Kuhnagel  (France)  v.  U.  S.,  ibid.  2647,  2649;  Boutwell'a  Report,  72  (in  which  the 
decision  upheld  claimant'8  French  citizenship).  See  also  Bouillotte  (France)  v. 
U.  S.,  ibid.  2650,  2652. 

2  Flutie  (U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  38,  41. 

'  Ruiz  V.  U.  S.,  Spanish  Treaty  CI.  Com.,  No.  112,  printed  in  Van  Dyne,  Naturali- 
zation, 177-178.    See  Final  Report  of  the  Commission,  May  2,  1910,  13-14. 


CONCLUSIVENESS    UPON    THE    EXECUTIVE  527 

proceeding,  and  that  it  is  an  ex  parte  proceeding  in  which  the  govern- 
ment has  neither  notice  nor  appears,  it  has  been  held  that  the  United 
States  is  not  concluded  by  erroneous  recitals  in  the  record.^ 

Whether  it  is  on  this  ground  or  in  the  exercise  of  the  discretion 
vested  in  the  Secretary  of  State  by  §  4075  of  the  Revised  Statutes,  it 
is  certain  that  the  Department  of  State  declines  to  recognize  the  valid- 
ity of  a  certificate  of  naturalization  when  it  appears  that  it  was  ob- 
tained by  mistake  or  by  fraud,  and  refuses  to  issue  a  passport  upon 
it,  without  reference  to  the  holder's  rights  otherwise  as  a  citizen.^ 
If  a  passport  is  obtained  through  such  a  certificate  and  subsequently 
that  fact  becomes  known,  a  cancellation  or  return  of  the  passport 
is  demanded,  or  appropriate  representations  made  to  the  proper  foreign 
government.^  Similarl}^  a  certificate  of  naturalization  being  only 
'prima  Jade  evidence  of  citizenship  and  therefore  of  title  to  protection, 
diplomatic  protection  may  be  and  is  declined  whenever  it  appears 
that  the  certificate  was  fraudulently  obtained  ^  or  that  the  naturalized 
citizen  has,  either  according  to  statute  ^  or  international  practice,^  for- 
feited his  right  to  diplomatic  protection. 

» Johannessen  v.  U.  S.,  225  U.  S.  227,  237;  Akerman,  Atty.  Gen.,  in  13  Op.  Atty. 
Gen.  176,  although  his  legal  reasons  are  inaccurate;  Mr.  Fish,  Sec'y  of  State,  Cir- 
culars of  May  2,  1871,  For.  Rel.,  1871,  pp.  25,  26.  International  commissions,  as 
has  been  observed,  have  held  that  foreign  governments  are  not  bound,  supra.  See 
also  Ruiz  V.  U.  S.,  in  Van  Dyne,  166. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Scruggs,  May  16,  1885,  For.  Rel.,  1885,  211, 
and  other  instructions  in  For.  Rel.,  paraphrased  in  Moore's  Dig.  Ill,  510-513,  909- 
910.     Mr.  Hay,  Sec'y  of  State,  to  Mr,  Sampson,  Jan.  21,  1902,  For.  Rel.,  1902,  389, 

3  Mr.  Bayard,  Sec'y  of  State,  to  Mr,  McLane,  Dec.  8,  1888,  For,  Rel,  1888,  I,  565, 
and  Moore's  Dig.  Ill,  §  524. 

'  Mr,  Fish,  Sec'y  of  State,  to  Mr,  Maynard,  Feb.  11,  1876,  Moore's  Dig.  Ill,  505; 
Mr,  Blaine,  Sec'y  of  State,  to  Mr,  Hirsch,  Dec,  17,  1890,  ibid.  512,  See  also  14  Op, 
Atty,  Gen.  295. 

s  Act  of  March  2,  1907,  §  2;  Act  of  June  29,  1906,  §  15. 

^  E.  g.,  Failure  of  bona  fide  intention  to  assume  duties  of  American  citizenship. 
Margolin's  case.  For,  Rel.,  1901,  450-451.  Refusal  to  present  evidence  of  citizen- 
Bhip,  Moribold  case  in  China,  1912.    See  infra,  §  337  et  seq. 


CHAPTER  in 

NATURALIZATION  AND  OTHER  TITLES  TO  CITIZENSHIP 

OR  PROTECTION 

FRAUDULENT  NATURALIZATION 

§  228.  Municipal  Penalties. 

The  statutes  of  the  United  States  penalize  false  swearing  in  an> 
of  the  proceedings  under  the  naturalization  laws,^  as  well  as  false 
personation,  forgery,  altering  or  using  a  false  or  counterfeit  certificate 
of  naturalization,"  or  unlawfully  procuring  naturalization.^ 

It  has  been  noted  that  the  United  States  may  bring  suit  to  set  aside 
or  cancel  a  fraudulently  obtained  naturalization  certificate.'*  Sec- 
tion 15  of  the  Act  of  June  29,  1906,  provided  for  the  first  time  that 
when  a  naturalized  citizen  establishes  a  permanent  residence  abroad 
within  five  years  after  his  naturalization,  it  shall  be  deemed  prima 
fade  evidence  that  the  naturalization  was  obtained  in  bad  faith.  The 
relevant  provisions  of  this  section  have  been  incorporated  in  sub- 
stance in  a  circular  instruction  of  the  Department  of  State  on  the 
subject  dated  April  19,  1907,^  which  reads: 

"When  any  alien  who  has  secured  naturalization  of  the  United  States 
shall  proceed  abroad  within  five  years  after  his  naturalization  and  shall 
take  up  his  permanent  residence  in  any  foreign  country  within  five  years 
after  the  date  of  his  naturalization,  it  shall  be  deemed  prima  facie  evi- 
dence that  he  did  not  intend  in  good  faith  to  become  a  citizen  of  the 
United  States  when  he  applied  for  naturalization,  and  in  the  absence 

1  Act  of  March  4,  1909,  §  80  of  the  U.  S.  Criminal  Code;  Act  of  June  29,  1906,  §  23. 

2  Act  of  March  4,  1909,  §§  74-79,  U.  S.  Criminal  Code,  repealing  §§  16,  17  and  19 
of  Act  of  June  29,  1906. 

'Act  of  June  29,  1906,  §  23.  The  statutes  above  mentioned  and  various  other 
statutes  relating  to  crimes  and  offenses  against  the  naturalization  laws  are  aet  out 
in  Van  Dyne,  NaturaUzation,  189-196,  414-416. 

*  Supra,  p.  .520. 

»  For.  Rel.,  1907,  8.    Printed  also  in  Van  Dyne,  136-138. 

528 


PRESUMPTIONS   OF    FRAUD  529 

of  countervailing  evidence  it  shall  be  sufficient  in  the  proper  proceedings 
to  authorize  the  cancellation  of  his  certificate  of  citizenship  as  fraudulent. 
Diplomatic  and  Consular  officers  shall  furnish  the  Department  of  State, 
to  be  transmitted  to  the  Department  of  Justice,  the  names  of  those 
within  their  jurisdictions,  respectively,  who  are  subject  to  the  provisions 
of  this  requirement,  and  such  statements  from  Diplomatic  and  Consular 
Officers  shall  be  certified  to  by  such  officers  under  their  official  seals,  and 
are  under  the  law  admissible  in  evidence  in  all  courts  to  cancel  certif- 
icates of  naturalization.! 

Section  15  of  the  Act  of  1906  has  been  held  by  the  Supreme  Court  ^ 
to  be  retroactive.  While  suit  to  cancel  fraudulently  or  illegally  ob- 
tained naturalization  certificates  has  been  brought  under  the  Act  in 
several  instances,^  it  appears  that  the  Department  of  Justice  has 
limited  its  proceedings  under  the  statute  to  cases  in  which  it  seemed 
that  the  result  of  the  suit  would  benefit  the  citizenship  of  the  country.'* 
It  seems  that  the  proceeding  is  both  difficult  and  expensive. 

§  229.  Presumptions  of  Fraud. 

Besides  the  statutory  cases  of  fraudulent  naturalization,  there  are 
numerous  cases  in  which  naturalization  is  obtained  by  a  technical 
compliance  with  the  statutes,  but  without  any  intent  to  reside  per- 
manently in  the  United  States.  Such  naturalization  may  be  considered 
fraudulent.     The  applicant  intends  to  reside  in  his  native  or  perhaps 

!  This  paragraph  was  also  added  to  the  Diplomatic  Instructions  and  Consular 
Regulations,  under  the  provisions  of  the  Executive  Order  of  April  6,  1907. 

2  Johannessen  v.  U.  S.,  225  U.  S.  227;  Luria  v.  U.  S.,  231  U.  S.  9.  See  the  fourth 
paragraph  of  §  15. 

'  U.  S.  V.  Nesbit,  168  Fed.  1005;  U.  S.  v.  Mansour,  170  Fed.  671;  U.  S.  v.  Simon, 
170  Fed.  680;  U.  S.  v.  Meyer,  170  Fed.  983;  U.  S.  v.  Spohrer,  175  Fed.  440;  U.  S.  v. 
Ellis,  185  Fed.  546;  U.  S.  v.  Luria,  184  Fed.  643,  231  U.  S.  9;  U.  S.  v.  Albertini,  206 
Fed.  133;  Johannessen  v.  U.  S.,  225  U.  S.  227. 

*  Part  of  Circular  letter  No.  107  of  the  Dept.  of  Justice  of  Sept.  20,  1909,  con- 
taining instructions  as  to  naturalization  matters,  reads: 

"In  the  opinion  of  the  Department,  as  a  general  rule,  good  cause  is  not  shown 
for  the  institution  of  proceedings  to  cancel  certificates  of  naturalization  alleged  to 
have  been  fraudulently  or  illegally  procured  unless  some  substantial  results  are  to 
be  achieved  thereby  in  the  way  of  the  betterment  of  the  citizenship  of  the  country 
The  legislation  referred  to,  being  retroactive,  is  construed  to  be  remedial  rathe: 
than  penal  in  its  nature;  for  the  protection  of  the  body  pohtic  rather  than  for  the 
punishment  of  the  individuals  concerned."  The  British  NationaUty  Act,  1914, 
Part  II,  §  7,  gives  the  Secretary  of  State  authority  summarily  to  revoke  a  fraudu- 
lently obtained  certificate. 


530  THE    DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

in  another  country  and  to  use  his  naturalization  to  avoid  duties  and 
responsibilities  to  which  without  it  he  would  be  subject.  Before  the 
Act  of  June  29,  1906  and  the  Act  of  March  2,  1907,  which  defined  the 
cases  in  which  the  presumption  of  expatriation  arises  by  reason  of 
residence  abroad  for  certain  periods  of  time,  this  government  was 
frequently  imposed  upon  by  persons  who  claimed,  as  naturalized 
citizens,  the  right  to  American  protection  and  release  from  duties 
owed  to  their  native  country.  Secretary  of  State  Fish  sedulously 
supported  the  principle  that  an  aUen  who  obtains  naturalization  in 
the  United  States  not  with  a  view  to  perform  the  duties  of  American 
citizenship,  but  with  a  view  to  escape  the  obligations  of  citizenship 
in  the  land  of  his  nativity  in  which  he  resumes  his  residence,  is  guilty 
of  a  double  fraud  which  the  government  of  his  adoption  should  not, 
by  giving  him  its  protection,  aid  him  to  consummate.^ 

This  became  a  rule  of  action  in  the  matter  of  protecting  naturalized 
citizens,  but  it  was  difficult  to  apply  because  it  was  not  easy  to  deter- 
mine when  a  naturalized  citizen  had  permanently  resumed  residence 
in  his  native  land  without  an  intention  to  return  to  the  United  States.^ 
These  abuses  of  naturalization  were  discovered  particularly  in  mili- 
tary service  cases  in  which  the  person  in  question  had  obtained  Amer- 
ican citizenship  and  then  upon  return  to  his  native  country  had  used 
his  naturalization  to  evade  the  obligation  of  military  service.  The 
Bancroft  naturalization  treaties  ^  sought  to  provide  definite  rules 
for  the  determination  of  these  cases  in  the  countries  with  which  they 
were  concluded,  but  in  various  other  countries  diplomatic  contro- 
versies have  been  frequent.  When  it  appeared  evident  that  the  per- 
son  had  abandoned   his  American  residence  permanently  and   that 

1  Circular  of  Oct.  14, 1869,  Moore's  Arb.  2563-2564,  printed  also  in  Morse,  Citizen- 
ship, 233-235.  See  Moore's  Arb.  2564,  and  citation  to  Geo.  F.  Edmunds  memorial 
address;  14  Op.  Atty.  Gen.  295;  Wharton,  II,  §  176;  For.  Rel.,  1877,  246;  Morse,  228 
See  also  Moore's  Dig.  Ill,  §  377.  For  an  account  of  British  practice,  see  H.  Doc.  326, 
59th  Cong.,  2d  sess.,  349  et  seq.,  and  the  British  Nationality  Act,  1914,  Part  II, 
§3  (1),  4  &  5  Geo.  V,  ch.  17.  Flutie  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston, 
38,  42. 

^  Mr.  Cadwalader,  Act'y  Sec'y  of  State,  to  Mr.  Jay,  Oct.  5,  1874,  For.  Rel.,  1874, 
33;  Mr.  Tilhnan  to  Mr.  Sherman,  Dec.  7,  1897,  For.  Rel.,  1897,  127;  Mr.  Logan  in 
For.  Rel.,  1879,  143-145;  Mr.  Hunter  in  For.  Rel.,  1880,  108. 

'  Infra,  p.  548. 


PRESUMPTIONS    OF    FRAUD  531 

the  naturalization  was  in  fact  fraudulently  used  to  escape  obligations 
otherwise  due,  protection  has  been  withdrawn.^ 

Some  years  ago,  when  diplomatic  officers  were  permitted  to  issue 
passports,  the  Department  of  State  directed  that  when  the  renewal 
of  passports  was  frequently  demanded  by  alleged  Americans  resident 
abroad  they  were  to  be  warned  that  the  declaration  of  intention  to 
return  to  the  United  States  was  not  an  empty  phrase  and  that  a  further 
passport  should  be  refused  unless  for  special  reasons  it  was  clear  that  the 
foreign  residence  was  not  inconsistent  with  bona  ^e  American  citizenship. 

The  criteria  for  determining  when  naturalization  was  obtained 
fraudulently  or  claimed  inconsistently  with  American  citizenshi]j 
were  much  simplified  by  the  application  of  the  presumptions  defined 
in  the  Acts  of  June  29,  1906  and  March  2,  1907.-  Section  15  of  the 
Act  of  1906  provides  that  the  permanent  residence  of  a  naturalized 
citizen  in  any  foreign  country  within  five  years  after  his  naturaliza- 
tion shall  be  deemed  prima  facie  evidence  that  his  naturalization  was 
obtamed  in  bad  faith.  It  still  leaves  the  diplomatic  or  consular  officer 
to  determine  from  all  the  circumstances  when  the  residence  is  "per- 
manent." By  §  2  of  the  Act  of  1907,  two  years'  residence  of  the  nat- 
uralized citizen  in  the  country  of  his  origin  or  five  3''ears'  residence 
in  any  other  country  creates  a  presumption  that  he  has  ceased  to  be 
an  American  citizen,  and  unless  that  presumption  is  rebutted  by  show- 
ing some  special  and  temporary  reason  for  the  change  of  residence,  the 
obligation  of  protection  by  the  United  States  is  deemed  to  be  ended. 

It  has  already  been  noted  that  whenever  it  appears  to  the  Depart- 
ment of  State  that  naturalization  has  been  improperly  or  improvi- 
dently  granted  to  a  person  claiming  an  American  passport  or  diplomatic 
protection  on  the  strength  of  a  naturaUzation  certificate,  the  pass- 
port and  protection  are  refused.^ 

1  Mr.  Olney,  Secretary  of  State,  to  Mr.  Townsend,  For.  Rel.,  1895,  24.  When 
the  naturalized  citizen  has,  on  return  to  his  native  country,  flaunted  his  naturaliza- 
tion and  boasted  of  his  immunity  from  burdens  to  which  his  neighbors  were  subject, 
thereby  incurring  the  penalty  of  expulsion  "for  reasons  of  public  welfare, "  the  United 
States  has  declined  to  intervene  in  his  behalf.  For.  Rel.,  1894,  pp.  30-36,  supra, 
pp.  53,  56. 

2  Aide  memoire  of  the  Dept.  of  State,  December  20,  1909,  For.  Rel.,  1909,  35. 
2  Supra,  p.  527. 


532  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

§  230.  Criteria  Applied  by  Municipal  and  International  Courts. 

As  to  what  is  fraud,  no  definite  rule  can  be  laid  down.  It  would 
seem,  however,  that  it  must  in  general  be  positive  rather  than  negative. 
Thus,  it  was  held  in  United  States  v.  Norsch,^  that  an  applicant  who 
merely  presented  himself  for  naturalization,  loiowing  that  he  was  not 
entitled  thereto  was  not  guilty  of  fraud,  the  court  adding,  that  only 
when  he  resorts  to  false  testimony  or  to  some  trick  or  artifice  with 
a  view  to  deceiving  the  court,  is  he  guilty  of  fraud." 

Attention  has  already  been  called  to  the  views  of  international 
commissions  on  the  question  of  fraudulent  naturalization,  and  to  the 
general  rule  adopted  by  them  that  the  fraud  which  renders  naturaliza- 
tion invalid  must  consist  in  intentional  and  dishonest  misrepresenta- 
tion as  to  a  material  fact  or  in  the  willful  suppression  of  material  facts.* 
Under  the  rule  of  the  Spanish  Claims  Commission  adopted  December  14, 
1882,^  some  curious  decisions  were  handed  down  as  to  what  constituted 
fraud.  The  doubtful  regularity  of  claimant's  naturalization  was  held 
not  to  constitute  fraud. ^  In  other  cases,  however,  the  rule  appears 
to  have  been  too  liberally  interpreted.  Thus,  the  naturalization  of 
a  person  before  he  was  twenty-one,  notwithstanding  his  false  repre- 
sentations, was  held  not  to  constitute  fraud.^  Similarly,  clear  proof 
of  failure  to  comply  with  the  five  years'  residence  requirements  was 
in  a  number  of  cases  held  not  to  constitute  fraud  .^  Other  commissions 
have  considered  that  naturalization  obtained  notwithstanding  failure 
to  comply  with  residence  requirements  was  a  'prima  facie  evidence  of 
or  equivalent  to  fraud  or  misrepresentation  and  to  disentitle  the  claim- 
ant from  appearing  before  the  commission  as  an  American  citizen.^ 

1  U.  S.  V.  Norsch,  42  Fed.  417,  419;  Matter  of  McCarran,  8  Misc.  (N.  Y.),  482. 

2  For  other  cases  in  municipal  courts,  see  H.  Doc.  326,  59th  Cong.,  2d  sess.,  134, 
and  cases  under  §  15  of  the  Act  of  1906,  cited  supra,  p.  529,  note  3. 

'  Supra,  p.  522.  See  particularly  Angarica  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's 
Arb.  2621,  and  Criado,  ibid.  2625. 

*  Supra,  p.  525. 

<*  Zaldivar  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2630;  Covin  (U.  S.)  v. 
Spain,  ibid.  2629  {dictum). 

« Zenea  (U.  S.)  v.  Spain,  ibid.  2626. 

'  See,  e.  g.,  Montejo  (U.  S.)  v.  Spain,  ibid.  2646;  Macias  (U.  S.)  v.  Spain,  ibid.  3775, 
No.  52,  Original  opinion,  MS.  Dept.  of  State;  Covin  Y  Pinto,  ibid.  2635;  Rozas, 
ibid.  2646.    See  also  Madan,  ibid.  2641,  and  Portuondo,  ibid.  2565. 

»  Medina  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  ibid.  2583,  2587;  Perez  (U.  S.)  v 


INTERNATIONAL  EFFECTS   OF   NATURALIZATION  533 

While  the  abandonment  of  American  citizenship  by  a  naturalized 
citizen  may  be  visited  with  the  same  results  as  fraudulent  naturaliza- 
tion (and  the  Act  of  1906  in  fact  provides  that  the  establishment  of 
a  permanent  residence  abroad  within  five  years  after  naturalization 
shall  be  considered  prima  facie  evidence  of  the  bad  faith  of  the  natural- 
ization), international  commissions  have  considered  abandonment  of 
citizenship  as  distinct  from  fraudulent  naturalization  as  a  ground 
of  forfeiture  of  diplomatic  protection  or  citizenship. 

While  the  practice  of  the  Department  of  State  has  not  been  uniform, 
the  attempt  is  now  generally  made  to  secure  and  destroy  a  fraudulently 
obtained  naturaUzation  certificate,  just  as  a  wrongfully  held  passport 
is  retained  and  cancelled.  The  demand  for  legislation  empowering 
the  government  to  bring  suit  to  cancel  records  of  naturalization  ob- 
tained by  fraud  has  been  met  by  the  Act  of  June  29,  1906.^  Section  7 
of  the  recent  British  Nationality  and  Status  of  Aliens  Act  enables 
the  Secretary  of  State  to  revoke  any  certificate  obtained  by  fraud,  and 
order  it  to  be  given  up  and  cancelled,  an  obligation  enforced  by  criminal 
proceedings.- 

INTERNATIONAL   EFFECTS   OF   NATURALIZATION 

§  231.  Nature  and  Effect  of  Naturalization. 

Naturalization  is  in  effect  an  act  of  adoption  by  which  a  foreigner 
at  his  expressed  or  impUed  volition,  is  granted  citizenship,  with  its 
incidental  rights,  upon  his  compliance  with  the  conditions  prescribed 
by  the  municipal  law  of  the  adopting  country.^  It  is  an  act  of  public 
law  whose  validity  can  in  theory  be  determined  only  by  the  naturaliz- 
ing country,  within  whose  right  it  is  to  fix  the  conditions  under  which 

Mexico,  July  4,  1868,  ibid.  2719,  and  Lizardi  (U.  S.)  v.  Mexico,  ibid.  2589;  Kuhnagel 
(France)  v.  U.  S.,  ibid.  2647,  2649  (same  principle) ;  Flutie  (U.  S.)  v.  Venezuela,  Feb.  17, 
1903,  Ralston,  38,  41;  Ruiz  v.  U.  S.,  No.  112,  Spanish  Treaty  CI.  Com.,  supra.,  p.  526. 

1  Supra,  p.  528.    See  also  Moore's  Dig.  Ill,  §  425. 

2  Part  II,  §  7  (2),  4-5  Geo.  V,  ch.  17.  Under  the  new  Act  (§  8)  the  government 
of  any  British  possession  has  the  power  to  grant  a  certificate  of  naturaUzation  hav- 
ing the  same  eflfect  as  a  certificate  granted  by  the  British  Secretary  of  State.  In  the 
self-governing  dominions,  the  Act  must  first  have  been  adopted.  See  E.  B.  Sargent 
on  Naturalization  in  the  British  dominions,  in  No.  31  (Jul}',  1914),  Journ.  of  the 
Soc.  of  Comp.  Leg.  327-336. 

'  Stoicesco,  C.  J.,  Etude  sur  la  naturalisation,  Paris,  1876,  p.  236. 


534  THE    DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

the  concession  of  citizenship  is  extended.^  These  conditions  vary 
from  country  to  country.^  Cockburn  in  his  well-known  work  on  na- 
tionality has  said  that  assuming  the  competency  of  a  person  to  change 
his  allegiance,  "the  effect  of  naturalization  ought,  by  the  common 
law  of  nations,  to  be  everywhere  to  supersede  and  put  an  end  to  the 
nationality  of  origin,  even  where  by  expatriating  himself  the  subject 
has  offended  against  the  law  of  the  original  country  and  may  remain 
amenable  to  punishment  should  he  return  to  it."  ^ 

The  comity  of  legislation  which  would  be  necessary  to  bring  about 
this  condition  and  thus  avoid  cases  of  dual  nationality  has  not  yet 
been  manifested  by  the  majority  of  the  states  of  the  world.  Many 
countries  still  deny  the  right  of  expatriation  or  place  such  onerous 
restrictions  upon  its  exercise  as  to  amount  to  a  practical  denial  of  the 
right.  ■^  While  numerous  treaties  between  the  United  States  and  cer- 
tain foreign  countries  have  aided  greatly  in  adjusting  conflicting  claims 
to  the  allegiance  of  persons  who  have  become  naturalized  citizens 
of  the  United  States,  and  while  municipal  statutes  and  executive 
regulations  of  the  United  States  have  furnished  criteria  to  establish 
the  bona  fide  character  of  the  American  citizenship  of  a  naturalized 
American  citizen  abroad  and  of  his  right  to  diplomatic  protection, 
the  fact,  nevertheless,  that  there  are  various  countries  of  the  old  world 
which  deny  absolutely  or  conditionally  the  right  of  expatriation  and 
with  which  no  naturalization  treaties  have  been  concluded,  and  the 
fact  that  the  treaties  do  not  extend  to  all  cases,  still  make  conflicts 
of  nationality  and  cases  of  no  nationality  of  frequent  occurrence. 
The  various  types  of  cases  which  have  engaged  the  attention  of  the 
United  States  in  its  diplomatic  intercourse  with  foreign  countries  will 
be  discussed  presently. 

1  De  FoUeville,  D.,  Traits  .  .  .  de  la  naturalisation,  Paris,  1880,  p.  4;  Pradier- 
Fodere,  III,  §  1658. 

*  De  FoUeville  in  Part  four  of  his  work  undertakes  a  comparative  study  of  the  law 
in  the  countries  of  Europe  and  America.  See  also  Lehr,  E.,  La  nationalite,  Paris, 
1909;  Sieber,  J.,  Das  Staats-biirgerrecht  im  internationalen  Verkehr,  Bern,  1907, 
205-410;  Cogordan,  La  nationalite,  Paris,  1890,  171-271  and  Appendix;  and  Zebal- 
los,  E.  S.,  La  nationalite  au  point  de  vue  de  la  legislation  comparee  et  du  droit  prive 
humain,  trad,  par  A.  Bosq,  Paris,  1914,  2  v. 

»  Cockburn,  Nationality,  London,  18G9,  208. 

*  Pradier-Fod^T^'-,  III,  §  1661  and  infra,  §§  237,  238. 


CONDITIONS  OF   RECOGNITION  535 

Before  examining  the  position  of  naturalized  American  citizens 
abroad,  it  maj'  be  well  to  note  the  views  of  the  United  States  on  cer- 
tain conditions  attaching  to  naturalization  in  general. 

§  232.  Conditions  of  Recognition. 

The  United  States  has  always  insisted  that  naturalization  requires 
the  voluntary  act  and  the  express  or  tacit  consent  of  the  individual 
to  be  naturalized.  This  view  has  been  expressed  on  various  occasions 
in  connection  with  the  attempts  of  different  states  of  Latin-America 
by  municipal  law  to  impose  their  nationality  on  foreigners.  Thus, 
the  statutes  of  Peru,  Mexico,  Brazil,  Venezuela  and  other  countries, 
imputing  their  nationality  ipso  facto  upon  persons  who  purchase  real 
estate  or  have  children  born  to  them  in  those  countries  have  met  with 
vigorous  protest  and  a  refusal  of  recognition  by  the  United  States.^ 
The  fact  that  the  law  of  Mexico  and  Brazil  permitted  the  foreigner, 
by  affirmative  action  on  his  part,  to  retain  his  original  nationality 
was  not  considered  to  alter  the  position  of  the  United  States  that 
"the  loss  of  citizenship  cannot  be  imposed  as  a  penalty  nor  a  new 
national  status  forced  as  a  favor  by  one  government  upon  a  citizen 
of  another."  -  In  a  few  countries  of  Latin-America,  the  acceptance 
of  certain  public  offices  naturalizes  a  foreigner.^  As  the  acceptance 
of  such  office  is  presumably  a  voluntary  act  of  the  foreigner,  his  con- 

'  Moore's  Dig.  Ill,  §  378.  See  also  Hall,  Foreign  powers  and  jurisdiction,  46; 
Cogordan,  Nationalite,  117-118;  Pradier-Fodere,  III,  §  1658;  Robinet  de  Clerj'  in 
2  Clunet  (1875),  80.  The  decisions  of  the  mixed  commission  of  July  4,  1868  with 
Mexico,  on  the  acquirement  of  citizenship  by  owning  real  estate,  have  been  discussed, 
supra,  p.  492. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Manning,  Nov.  20,  1886,  For.  Rel.,  1886,  723; 
Pradier-Fodere  (III,  §  1658),  points  out  that  from  this  point  of  view  the  acquisi- 
tion of  citizenship  by  naturalization  may  be  considered  as  a  contract  between  the 
alien  who  requests  it  and  the  state  which  grants  it.  Octavio  Rodriguez  in  an  article 
on  the  Brazilian  law  of  nationality  states  that  while  Portugal,  Spain,  Great  Britain, 
Italy  and  Austria  protested  against  the  provision  of  the  BraziUan  Constitution  of 
1891  by  which  aliens  who  had  not  claimed  their  original  nationality  by  Aug.  24,  1891 
became  citizens  of  Brazil,  Brazil  has  maintained  its  position.  It  seems,  from  a  note 
sent  to  the  French  government,  that  the  law  was  not  strictly  enforced.  6  Rev.  de 
rinst.  de  dr.  comp.  302-304. 

'  Guatemala  and  Salvador,  cited  by  Harmodio  Arias  in  his  article,  Nationality 
and  naturalization  in  Latin-America,  in  11  Journ.  of  the  Society  of  Comp.  Leg. 
(Nov.  1910),  126,  at  136,    Norway  and  Germany  appear  to  make  similar  provision. 


536  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

sent  to  the  legal  consequences  of  his  act  may  be  inferred.^  The  United 
States  recognized  the  validity  of  a  Haitian  law  which  provided  for 
certain  grants  of  land  to  immigrants  on  condition  that  they  became 
Haitian  citizens.^ 

A  reasonable  distinction  would  result  in  a  denial  of  the  right  to 
impose  citizenship  based  upon  mere  residence,  or  marriage  with  a 
native  woman  or  the  acquisition  of  real  property,  or  acts  generally 
of  a  purely  civil  and  personal  nature;  whereas  such  naturalization 
by  operation  of  law  should  be  recognized  if  it  involves  the  enjoyment 
of  political  rights  or  privileges  or  if  the  consent  of  the  naturalized 
person  may  be  inferred.  The  acquirement  of  citizenship  through  the 
naturalization  of  the  parent  or  husband  or  by  marriage  of  an  alien 
woman  to  a  citizen  or  by  treaty  or  annexation  of  territory  are  almost 
universally  recognized  as  valid  instances  of  naturalization  by  operation 
of  law. 

While  it  is  not  considered  within  our  province  to  discuss  the  various 
methods  of  naturalization  provided  by  the  municipal  law  of  the  United 
States,^  e.  g.,  by  naturalization  of  the  parent,  by  virtue  of  the  marriage 
relationship,  and  collective  naturalization,  either  by  the  admission 
of  new  states  or  by  treaty  or  conquest,  it  may  be  desirable  to  point 
out  one  or  two  features  of  American  naturalization  which  have  at 
times  had  an  international  bearing. 

§  233.  Certain  Features  of  American  Naturalization  having  Interna- 
tional Importance. 
The  United  States  pays  no  regard  to  the  important  particular  of 
the  capacity  of  the  applicant  for  naturalization,  according  to  the  mu- 
nicipal law  of  his  original  country,  to  divest  himself  of  his  former 
allegiance.  This  is  of  course  a  necessary  consequence  of  the  applica- 
tion of  the  doctrine  of  voluntary  expatriation.     Prussia,  Bavaria  and 

*  Hall  goes  somewhat  further  in  concluding  that  a  wish  to  identify  himself  with 
the  state  may  be  inferred  from  the  performance  of  poUtical  acts.  Cited  by  Arias, 
:)p.  cil.,  137.    See  Hall,  Foreign  powers  and  jurisdiction,  46. 

2  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Powell,  Dec.  1,  1899,  For.  Rel.,  1899,  4ri3. 

'  See  works  noted  supra,  p.  4.57,  and  particularly  H.  Doc.  326,  59th  Cong.,  2d  sess., 
138-159,  and  Moore's  Dig.  HI,  §§  413-415  (Naturalization  of  parent),  §§  408-412 
(marriage  relationship),  §§  379-380  (collective  naturalization).  On  citizenship  by 
annexation  of  territory,  see  also  cases  in  Moore's  Arb.  2509-2518,  2.538,  2541-2542. 


FEATURES    HAVING    INTERNATIONAL   IMPORTANCE  537 

Sweden  appear  to  be  among  the  few  European  states  which  inquire 
into  the  capacity  of  the  applicant  to  abjure  his  native  allegiance/  al- 
though Great  Britain  until  1914  provided  by  statute  that  the  naturalized 
subject  shall  not  be  deemed  a  British  subject  within  the  limits  of  his 
former  country,  unless  by  its  laws  or  by  treaty,  he  has  ceased  to  be  a 
subject  thereof." 

Naturalization  in  the  United  States  depends  upon  a  compliance 
with  certain  conditions,  including,  in  the  usual  form  of  naturalization, 
continuous  residence  in  the  United  States  for  a  period  of  five  years 
immediately  prior  to  naturalization.^ 

It  has  been  generally  held  that  the  words  "continuous  residence" 
are  to  be  understood  in  the  legal  case,  according  to  which  a  transient 
absence  for  business,  pleasure  or  other  occasion,  with  the  intention 
of  returning,  does  not  interrupt  the  period  of  residence.'*  This  is  the 
construction  placed  upon  the  words  "resided  uninterruptedly"  in 
certain  naturalization  treaties  of  the  United  States  with  other  states 
{e.  g.,  Bavaria  and  Wiirtemberg)  and  is  expressly  so  defined  in  pro- 
tocols annexed  to  those  treaties.^  The  courts  construe  the  provision 
for  "continuous  residence"  as  practically  equivalent  to  domicil  and 
do  not  require  a  continuity  of  physical  presence,^  the  question  whether 

^  Cockburn,  Nationality,  48-49. 

^  Supra,  p.  461.  In  the  British  Nationality  and  Status  of  Aliens  Act,  1914,  this 
qualification  of  British  naturalization  has  been  dropped.  Part  II,  §  3  (1).  On  the 
effect  of  the  qualifying  clause  (33-34  Vict.  ch.  14,  §  7,  par.  3),  see  F.  B.  Edwards, 
The  effect  of  a  certificate  of  naturaUzation  in  30  Law  Quar.  Rev.  (1914),  433,  436- 
447. 

^  For  interpretations  by  municipal  coui'ts  and  authorities  of  the  five  years'  resi- 
dence requirement  see  H.  Doc.  326,  59th  Cong.,  2d  sess.,  102-114.  For  the  history 
of  the  residence  requirements  in  U.  S.  naturalization  acts,  see  F.  Van  Dyne  in  29 
Amer.  Law  Rev.  52-58,  Moore's  Dig.  Ill,  §  388,  and  Naturalization  of  George  Ed- 
ward Lerrigo,  Hearings  before  the  House  Committee  on  Immigration  and  Naturaliza- 
tion, 63rd  Cong.,  2nd  sess..  May  21,  1914,  part  2,  especially  letter  from  J.  B.  Densmore, 
Act'g  Sec'y  of  Labor,  p.  16.  Mr.  Lerrigo  was  naturalized  by  Act  of  Congress,  Feb.  23, 
1915,  notwithstanding  the  fact  that  he  had  not  resided  five  years  in  the  U.  S.  prior 
to  the  Act.  His  case  presented  peculiar  circumstances  which  justified  naturaliza- 
tion.   See  Hearings  cited, 

*  13  Op.  Atty.  Gen.  376. 

*  Hunt's  The  American  passport,  Washington,  1898,  p.  175,  The  same  interpre- 
tation would  be  made  of  other  treaties. 

6  U.  S,  V.  Rockteschell,  208  Fed.  530. 


538  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

there  has  been  a  continuous  residence  being  one  of  fact  for  determina- 
tion under  all  the  circumstances  of  the  case.^ 

In  our  discussion  of  fraudulent  naturalization,  we  have  considered 
the  views  of  various  international  commissions  as  to  the  effect  of  fail- 
ure to  comply  with  the  requirements  for  a  continuous  residence  in 
its  relation  to  fraud  under  the  naturalization  laws.-  In  the  issuance 
of  passports,  the  State  Department  has  to  determine  whether  a  non- 
compliance with  the  residence  requirements  of  the  statute  amounts 
to  fraud  warranting  a  refusal  to  recognize  the  validity  of  the  naturaliza- 
tion certificate  and  a  refusal  of  a  passport.  The  question  also  becomes 
of  importance  because  of  the  provision  in  our  naturalization  treaties 
making  five  years'  uninterrupted  residence  in  the  United  States  a 
condition  precedent  to  recognition  by  the  original  government  of  the 
change  of  allegiance  of  a  naturalized  citizen.  It  has  been  held  that 
a  petition  for  the  cancellation  of  a  certificate  of  naturalization  under 
§  15  of  the  Act  of  June  29,  1906,  on  the  ground  of  want  of  the  neces- 
sary previous  residence,  must  show  either  fraud  or  that  the  evidence 
before  the  court  which  granted  the  certificate  was  insufficient  to  war- 
rant the  finding  of  residence.  ^ 

It  may  here  be  observed  that  the  statutes  of  the  United  States  in 
granting  naturalization  look  to  the  past  and  not  to  the  future,  in  that 
they  require  a  compliance  with  conditions  preceding  naturalization 
and  require  no  evidence  or  manifestation  of  intention  to  remain  a 
citizen  of  the  United  States.  The  applicant  may  leave  the  United 
States  as  soon  as  he  is  naturalized.  By  the  declaration  of  intention 
he  merely  states  his  intention  to  become  a  citizen.  He  is  not  required 
to  state  that  he  intends  to  make  his  domicil  in  the  United  States. 
This  defect  in  the  law,  which  it  appears  is  avoided  by  the  naturaliza- 
tion laws  of  practically  all  the  European  countries,  has  brought  about 
many  complaints  of  the  imposition  practiced  upon  the  United  States 
by  naturalized  American  citizens  residing  abroad,  who  sought  natural- 
ization for  the  sole  purpose  of  securing  protection.*     While  the  Nat- 

•  U.  S.  i).  Cantini,  212  Fed.  925. 
^  Supra,  pp.  522  el  seq.,  532. 
»  U.  S.  r.  llockteschell  (Oct.  1913),  208  Fed.  530. 

^  Report  of  the  Commission  on  Naturalization,  Nov.  8,  1905,  H.  Doc.  46,  59tD 
Cong.,  1st  sess.,  14-15. 


"NON-UETROACTIVITY   OF   NATURALIZATION  539 

uralization  Act  of  June  29,  1906  has  not  rectified  the  omission  by  re- 
quiring the  appUcant  to  swear  that  he  intends  to  make  his  permanent 
residence  in  the  United  States,  §  15  authorizes  proceedings  for  the 
cancellation  of  the  certificate  of  a  naturalized  citizen  who  within  five 
years  of  his  naturalization  establishes  a  permanent  residence  abroad, 
and  §  2  of  the  Act  of  March  2,  1907,  provides  that  a  residence  of  two 
years  in  his  native  land  or  five  years  in  any  other  foreign  country 
creates  a  rebuttable  presumption  of  his  expatriation. 

Under  the  regulations  of  the  Department  of  State  passports  are 
as  a  rule  issued  only  to  those  naturalized  citizens  abroad  who  declare 
an  intention  to  resume  their  residence  in  the  United  States.^ 

§  234.  Non-Retroactivity  of  Naturalization. 

It  is  a  fairly  established  principle  that  naturalization  has  no  retro- 
active effect.  Most  of  the  naturalization  treaties  of  the  United  States 
expressly  provide  that  the  naturalized  citizen  is  punishable  in  his 
native  countr}^  for  violations  of  law  committed  prior  to  his  emigration. 
Thus,  desertion  after  the  call  to  arms  or  while  in  the  active  service 
is  an  offense  "from  the  penalty  of  which  exemption  by  foreign  natural- 
ization is  neither  claimed  nor  conceded  by  the  United  States."  -  In 
countries  in  which  military  service  is  compulsory  and  with  which  the 
United  States  has  naturalization  treaties,  it  would  seem  that  a  natural- 
ized citizen  who  failed  to  respond  to  the  call  to  arms,  when  after  having 
served  the  required  number  of  years,  he  was  placed  on  the  reserve 
rolls,  and  then  emigrated  to  the  United  States  in  time  of  peace  and 
before  the  call  to  arms,  and  became  duly  naturalized,  is  secured  by 
the  terms  of  the  treaties  from  punishment  for  desertion,  the  obliga- 
tion to  miUtary  service  having  arisen  after  his  emigration.^    Similarly, 

1  The  exception  is  made  in  the  case  of  American  naturalized  citizens  resident  in 
a  semibarbarous  country  or  in  a  country  in  which  the  U.  S.  exercises  extraterritorial 
jurisdiction,  in  which  residence  may  be  indefinitely  prolonged  without  forfeiting 
American  citizenship  or  protection.  Circular  instruction,  March  27,  1899.  Such  cit- 
izenship is  no  longer  inheritable  from  generation  to  generation,  but  is  subject  to  the 
provisions  of  §  1993,  R.  S.,  infra,  §  333. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Turner,  Sept.  10,  1885,  Moore's  Dig.  Ill,  425. 
8ee  also  Moore's  Dig.  Ill,  §§  401-402. 

*  Cases  of  L.  Sedivy  and  F.  Holasek  v.  Austria,  For.  Rel.,  1896,  6-13,  16.  See  also 
For.  Rel..  1900.  30. 


540  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

emigration  prior  to  the  year  when  liability  to  service  arises  or  before 
conscription,  carries  exemption,  under  the  treaties,  from  penalties 
for  non-fulfillment  of  military  duty.^  When,  however,  the  emigration 
was  due  solely  to  a  desire  to  evade  military  duty,  the  United  States 
has  often  yielded  to  the  asserted  right  of  the  native  state  to  expel  the 
emigrated  person  should  he  undertake  to  settle  in  his  native  home 
as  a  naturalized  American  citizen,  free  from  the  obligation  of  military 
service.^  It  is  usually  provided,  at  least  in  the  Bancroft  treaties, 
that  the  emigrant  is  not  punishable  for  the  act  of  emigration  itself, 
although,  apart  from  treaty,  a  state  has  clearly  the  right  to  regulate, 
under  penalty,  the  emigration  of  its  subjects  and  to  punish  its  nationals 
for  evasion  of  military  service.  The  treaties  also  provide  for  the  ap- 
plication of  the  customary  statutes  of  limitation  to  punishable  offenses, 
and  the  United  States  has  generally  been  successful  under  these  stat- 
utes of  limitation  in  securing  a  remission  of  penalty  or  liability  for 
the  naturalized  citizen.^ 

In  the  case  of  international  claims,  the  rule  uniformly  adopted 
is  that  American  naturalization  cannot  serve  to  nationahze  a  claim 
which  arose  prior  to  the  date  of  naturalization  of  its  owner.  In  other 
words,  a  claim  must  be  national  in  origin  as  well  as  at  the  time  of  pres- 
entation.^ A  passage  from  an  instruction  of  Secretary  of  State  Fish 
may  here  be  aptly  quoted:  "In  granting  the  high  privilege  of  its  citizen- 
ship, the  United  States  does  not  assume  the  defense  of  obligations  in- 
curred by  the  party  to  whom  it  accords  its  citizenship  prior  to  his  acquisi- 
tion of  that  right,  nor  does  it  assume  to  become  his  attorney  for  the 
prosecution  of  claims  originating  prior  to  the  citizenship  of  the  claimant."^ 

§  235.  Protection  of  Naturalized  Citizen  in  Native  Country. 

It  has  already  been  observed  ®  that  the  statutes  of  the  United  States 

1  For.  Rel.,  1889,  25,  35. 

2  Supra,  p.  53. 

=>  Moore's  Dig.  Ill,  §  403. 

*  Ryder  (U.  S.)  v.  Chinese  indemnity,  treaty  of  Nov.  8,  1858,  Moore's  Arb.  2332. 
Claims  before  Spanish  commission  of  Feb.  12,  1871,  ibid.  2437;  Abbiatti  (U.  S.)  v. 
Venezuela,  Dec.  5,  1885,  ibid.  2348;  Medina  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  ibid. 
2483.    See  also  infra,  §  306. 

6  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Davis,  Nov.  24,  1874,  Moore's  Dig.  Ill,  429. 

•  Supra,  p.  460. 


PROTECTION  OF  NATURALIZED   CITIZEN  IN  NATIVE   COUNTRY       541 

require  and  provide  that  naturalized  citizens  and  native  citizens  shall 
be  equally  protected  abroad.^  The  United  States  is  often,  however, 
unable  to  enforce  this  statutory  obligation  of  equal  protection  to  both 
classes  of  citizens  by  reason  of  the  fact  that  several  countries,  e.  g., 
Russia,  Turkey  and  Greece  prohibit  expatriation,  and  either  punish 
the  subject,  upon  his  return,  for  having  acquired  foreign  naturaliza- 
tion, or  decline  to  recognize  his  foreign  citizenship.  Upon  his  return 
to  his  native  country,  he  is  treated  as  a  native,  and  the  United  States 
is  not  in  a  position  to  enforce  rights  growing  out  of  his  American  nat- 
uralization. Other  countries,  e.  g.,  Switzerland  and  France,  predicate 
the  recognition  of  a  change  of  allegiance  upon  compliance  with  certain 
formalities  for  abjuring  original  allegiance,  in  the  absence  of  which 
the  foreign  naturalization  of  the  subject  has  no  effect  in  his  native 
country  or  only  such  effect  as  his  native  country  is  willing  to  concede. 
Less  than  half  the  countries  of  Europe  have  concluded  naturalization 
treaties  with  the  United  States. 

Although  the  naturalization  treaties  have  done  much  to  remove 
difficulties  and  controversies  with  the  countries  with  which  they  have 
been  concluded,  as  to  the  status  of  the  naturalized  citizen  with  respect 
to  his  new  and  his  former  country,  the  protection  to  be  extended  to  him 
is  limited  by  the  terms  of  the  treaty.  Again,  with  respect  to  certain 
classes  of  persons  excluded  from  various  countries,  such  as  Chinese 
in  some  of  the  Latin-American  countries  and  Syrians  in  Haiti,  their 
subsequent  American  naturalization  has  not  served  to  exempt  them 
from  the  application  of  the  local  exclusion  law.^  So  also,  the  pre- 
sumption of  expatriation  by  residence  abroad  arises  more  quickly 
against  a  naturalized  than  against  a  native  citizen.^ 

These  examples  will  serve  to  indicate  the  limitations  upon  the  ob- 
ligation of  equal  protection  and  upon  its  execution  and  enforcement. 
At  most,  it  must  be  understood  as  the  duty  to  extend  the  same 

»  R.  S.,  §  2000;  9  Op.  Att'y  Gen.  (1859),  360;  14  ibid.  (1873),  295;  Morse  on  Citizen- 
ship, §  134;  Wise,  John  S.,  American  citizenship,  261;  E.  P.  Wheeler  in  3  A.  J.  I.  L. 
(1909),  882.  The  American  passport,  171;  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Gushing, 
May  22,  1876,  Moore's  Dig.  VI,  622. 

2  For.  Rel.,  1909,  242-245,  quoting  Sol.  Op.  March  5,  1909.  As  to  the  exclusion 
of  Chinese  who  are  British  subjects,  see  20  Op.  Att'y  Gen.  729. 

3  Infra,  §  330. 


542  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

measure  of  protection,  whenever  possible,  to  the  native  and  to  the 
naturalized  citizen.^ 

The  United  States  has  always  recognized  the  apparent  irreconcilability 
of  the  conflict  of  laws  in  cases  where  a  naturalized  citizen,  originally 
the  subject  of  a  country  which  prohibits  expatriation,  returns  volun- 
tarily to  his  native  country.  The  view  of  this  government  has  been 
that  the  effect  of  American  naturalization  is  in  no  wise  dependent 
upon  or  affected  by  the  law  of  the  alien's  former  country  and  his  rights 
are  effectively  respected  in  the  United  States  and  protected  in  a  third 
country.  Should  he,  however,  return  to  his  native  country,  the  United 
States,  while  asserting  that  the  validity  of  his  naturalization  cannot 
be  questioned  except  by  an  allegation  of  fraud  in  its  procurement, 
nevertheless  is  aware  of  the  fact  that  in  the  absence  of  a  treaty  of 
naturalization,  its  validity  may  not  be  practically  enforceable  against 
a  counterclaim  of  his  native  country,  based  upon  the  ground  that 
under  its  law  he  has  not  lost  his  original  allegiance.^  It  is  clear  that 
until  the  freedom  of  expatriation  is  universally  recognized  such  con- 
flicts will  occasionally  occur.  It  seems  true,  also,  notwithstanding 
the  contentions  of  the  United  States  as  to  the  unlawfulness  of  punish- 
ing a  person  for  becoming  an  American  citizen,  as  is  the  law  and  prac- 
tice of  Russia,  that  in  the  absence  of  consent  or  treaty,  naturalization 
abroad  has  within  the  limits  of  the  country  of  origin  no  other  effect 
than  the  government  of  that  country  chooses  voluntarily  to  concede. 

1  The  United  States  issuea  the  same  form  of  passport  to  all  citizens  of  the  U.  S. 
(not  special  officials)  whether  native  or  naturalized.  Many  other  countries  make  a 
distinction  in  issuing  passports.  The  American  passport,  173.  During  the  course 
of  the  present  European  War,  the  Department  of  State  has  all  but  refused  to  issue 
passports  to  naturalized  citizens,  natives  of  the  belligerent  countries,  the  object  being 
to  avoid,  so  far  as  possible,  diplomatic  controversies  with  their  former  countries,  or 
conceivably  with  enemy  countries. 

*  This  is  the  practice  with  Russia,  Turkey  and  Persia.  9  Op.  Att'y  Gen.  356;  For. 
Rel.,  1893,  498-501,  Moore's  Dig.  Ill,  780-781.  But  in  many  c&ses  where  naturalized 
American  citizens  have  been  imprisoned  upon  their  return  to  Turkey  and  Russia, 
their  native  lands,  the  good  offices  of  the  diplomatic  representative  of  the  United 
States  have  been  successful  in  obtaining  their  release.  Wheaton's  often  quoted 
statement  in  1840  to  a  naturalized  citizen  of  Prussian  origin,  that  on  his  return  to 
Prussia,  his  "native  domicil  and  national  character  revert"  was  contradicted  by 
Att'y  Gen.  Black  in  1859  (9  Op.  Att'y  Gen.  359  et  seq.).  Congress,  in  the  Act  of 
1808,  by  providing  for  the  equality  of  native  and  naturalized  citizens,  supported 
Mr.  Black's  opinion.    H.  Doc.  326,  59th  Cong.,  2d  seas.,  9-10. 


RELATIONS   WITH    DIFFERENT   COUNTRIES  543 

Some  of  the  states  of  Europe  have  avoided  the  controversies  grow- 
ing out  of  conflicting  claims  to  allegiance  by  requiring  from  the  appli- 
cant for  naturalization  proof  that  his  change  of  allegiance  is  permitted 
by  the  sovereign  of  whom  he  is  then  a  dependent.  Great  Britain 
recognized  this  principle  in  its  Naturalization  Act  of  1870  by  providing 
that  the  naturalization  of  an  alien  shall  be  without  force  and  effect 
should  he  return  to  the  country  of  his  original  allegiance  unless  by 
the  laws  thereof  or  by  treaty  between  that  country  and  Great  Britain 
his  change  of  status  is  recognized.^ 

The  foreign-born  son  of  a  naturalized  American  citizen  who  returns 
to  his  native  country,  is  required,  in  order  to  have  the  protection  of 
the  United  States,  not  merely  to  elect  American  citizenship  upon 
reaching  his  majority,  but  to  carry  out  his  intention  by  taking  measures 
to  come  to  the  United  States  and  make  it  his  permanent  abode.- 

§  236.  Relations  with  Dififerent  Countries. 

It  will  now  be  appropriate  to  enter  upon  a  more  detailed  discussion 
of  the  position  of  the  naturalized  American  citizen  upon  his  return 
to  the  foreign  country  to  which  he  originally  may  have  owed  allegiance. 
Inasmuch  as  the  enforceability  of  the  statutory  obligation  of  protec- 
tion depends  so  largely  upon  the  municipal  law  of  his  native  country, 
which  may  not  recognize  his  foreign  naturaUzation  or  recognize  it 
only  upon  the  fulfillment  of  certain  conditions,  it  is  important  to  study 
the  question  in  its  relation  to  the  different  countries  in  which  it  has 
arisen.    For  our  present  purpose,  these  countries  may  be  divided  into: 

»  33  Vict.,  ch.  14,  §  7.  See  F.  B.  Edwards  in  30  Law  Quar.  Rev.  (1914),  436-447. 
This  limitation  upon  the  protection  of  a  naturalized  British  subject  has,  until  recently, 
been  endorsed  upon  British  passports.  Supra,  p.  461,  and  Sen.  Doc.  83,  54th  Cong., 
1st  eess.,  2-3;  Report  of  Sec'y  of  State  Olney,  Jan.  16,  1896,  also  printed  in  For.  Rel., 
189.5,  II,  147  et  seq.,  For.  Rel.,  1893,  683,  For.  Rel.,  1900,  27.  Nor  can  he  claim  British 
protection  against  the  operation  of  the  laws  of  his  native  country,  should  he  return  to 
it.  Webster,  P.,  Citizenship,  pp.  9,  58.  Under  Falmerston's  circular  of  Jan.  8,  1851, 
British  protection  of  naturalized  subjects  was  even  more  limited.  Cockburn,  Nation- 
aHty,  114,  115;  British  instructions  printed  in  For.  Rel.,  1873,  II,  1337,  1342.  In  the 
recent  British  Nationahty  and  Status  of  Aliens  Act,  1914,  this  qualification  has  been 
dropped.  Part  II,  §  3  (1),  so  that  the  British  law  now  is  probably  similar  to  that 
of  the  United  States. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Straus,  Sept.  30,  1887,  For.  Rel.,  1887,  1131. 
See  infra,  §§  270,  271. 


544  THE   DIPLOMATIC    PROTECTION   OF    CITIZENS    ABROAU 

(a),  those  which  practically  prohibit  absolutely  the  expatriation  of 
their  subjects  and  consequently  decline  to  recognize  foreign  naturaliza- 
tion; (b),  those  which,  while  admitting  the  right  of  voluntary  expatria- 
tion, subject  it  to  various  restrictions  and  conditions  and  recognize 
a  change  of  allegiance  only  upon  a  satisfactory  compliance  with  for- 
malities or  obligations  imposed  by  the  native  state — usually  obtaining 
preliminary  authorization  or  the  performance  of  military  service 
and  (c),  those  which  by  treaty  with  the  United  States  have  recognized 
the  validity  of  American  naturalization  and  define  the  status  of  a 
naturalized  citizen  upon  return  to  his  native  country.^ 

§  237.  (A)  Countries  Which  Deny  the  Right  of  Voluntary  Expatriation. 

Within  the  first  class  of  countries,  those  which  prohibit  the  ex- 
patriation of  their  subjects  without  imperial  consent — which,  however, 
is  practically  never  granted — are  Russia  and  Turkey,  and  on  occasion 
Greece. 

Subjects  of  these  countries  when  naturalized  in  the  United  States 
may  be  regarded  as  endowed  with  dual  nationality,  the  countries 
of  nativity  and  of  naturalization  each  claiming  the  person's  allegiance, 
but  each  incapable  of  enforcing  its  own  law  of  citizenship  within  the 
jurisdiction  of  the  other.  Technically  speaking,  the  United  States 
denies  the  dual  nationality  of  such  persons,  for  the  doctrine  of  vol- 
untary expatriation  is  inconsistent  with  the  continuation  of  the  original 
nationality  of  the  naturalized  person.  Under  Russian  law,  a  Russian 
subject  who  becomes  naturahzed  abroad  without  imperial  consent, 
is  deemed  to  have  committed  an  offense  for  which  he  is  liable  to  arrest 
and  punishment  if  he  returns  without  previously  obtaining  the  per- 
mission of  the  Russian  government.-    The  vis6  of  the  Russian  consul 

^  The  attitudes  of  foreign  governments  with  regard  to  the  nature  and  duration 
of  the  relationship  between  a  citizen  and  his  government  may  be  grouped  under 
six  types,  as  set  forth  in  H.  Doc.  326,  59th  Cong.,  2d  sess.,  12. 

''■  Dept.  of  kState  circular  notice  Jan.  9,  1914.  Notice  to  American  citizens  formsrl; 
subjects  of  Russia  who  contemplate  returning  to  that  country.  Similar  circulars 
for  other  countries  will  be  cited  hereafter  under  their  date  and  the  name  of  the  coun- 
try. In  the  volume  of  Foreign  Relations  for  1901,  the  Department  of  State  published 
a  series  of  circular  notices  giving  a  summary  account  of  the  liabihty,  in  each  impor- 
tant country  of  Europe,  of  naturalized  citizens  of  the  United  States  under  military 
and  expatriation  laws  of  their  native  country.     In  most  instances,  these  circulars 


I 


f.'OUNTRIES  WHICH  DENY  THE  RIGHT  OF  VOLUNTARY  EXPATRIATION      545 

»ipon  the  passport  of  a  returning  naturalized  American  citizen  does 
not  appear  to  constitute  permission  to  enter  Russia  as  an  American 
citizen.^ 

Under  a  Turkish  law  of  January  19,  1869  (6  Cheval,  1285),  foreign 
naturalization  without  governmental  consent,  is  prohibited,  and  the 
Ottoman  subject  naturalized  abroad  is  forbidden  to  return  to  Turkish 
territory  under  penalty  of  arrest  and  imprisonment  or  expulsion.^ 
In  practice,  the  arrest  or  detention  is  confined  to  such  as  may  be  neces- 
sary to  accomplish  the  deportation  of  the  individual,  and  the  punitive 
foature  is  not  enforced.  As  the  expulsion  is  based  upon  the  ground 
that  the  presence  of  such  an  individual  is  deemed  prejudicial  to  the 
public  interest,  the  United  States  has  not  opposed  its  enforcement. 

Both  in  the  case  of  Russia  and  Turkey,  the  United  States  has  re- 
monstrated vigorously  against  the  arrest  of  or  criminal  proceedings 
against  former  subjects  of  these  countries  on  the  ground  of  their  having 
become  citizens  of  the  United  States  without  imperial  permission.' 
In  Russia,  the  American  protests  have  met  with  Uttle  success,  although 
in  several  cases,  the  good  ofl^ices  of  the  American  Ambassador  have 
been  successful  in  obtaining  a  release  from  imprisonment.    An  Amer- 

have  been  superseded  by  later  notices,  as  cited  below.  The  penalty  in  Russia  for 
such  foreign  naturalization  is  loss  of  civil  rights  and  perpetual  banishment,  or  exile 
to  Siberia.  Section  325  of  the  Penal  Code,  For.  Rel.,  1895,  II,  1105,  1113.  See  also 
Moore's  Dig.  Ill,  §  453. 

1  Case  of  Anton  Yablkowski.  Mr.  Peirce,  charge,  to  Mr.  Olney,  October  16,  1895, 
For.  Rel.,  1895,  II,  1103. 

2  Dept.  of  State  circular,  Feb.  29,  1912,  Turkey.  Mr.  Uhl  to  Mavroyeni  Bey, 
Nov.  28,  1893,  For.  Rel.,  1893,  715.  On  return  of  a  naturalized  citizen,  formerly 
a  Turkish  subject,  to  Turkey,  his  American  citizenship  is  ignored,  and  should  he 
seek  to  cure  the  matter  by  asking  permission  to  be  naturahzed  abroad,  consent  is 
coupled  with  the  condition  of  non-return  to  Turkey.  Mr.  Hay,  Sec'y  of  State,  to 
Mr.  Wilson,  July  17,  1902,  For.  Rel.,  1902,  910.  See  also  Moore's  Dig.  Ill,  §§  459- 
463. 

3  Russia,  Mr.  Olney  to  Mr.  Peirce,  Nov.  4,  1895,  For.  Rel.,  1895,  II,  1107-1108 
The  American  passport,  144;  Ginzberg's  case.  For.  Rel.,  1895,  II,  1081-1096;  U\ 
szyc's  case.  For.  Rel.,  1887,  943-965;  ibid.  1888,  1399;  MuUer's  case.  For.  Rel.,  1S81 . 
658-672. 

Turkey,  Report  of  Sec'y  of  State  Olney,  Sen.  Doc.  83,  54th  Cong.,  1st  sess.,  3  p.; 
For.  Rel.,  1895,  II,  1471-1473;  Mr.  Hay,  Sec'y  of  State  to  Mr.  Garabedyan,  Feb.  19, 
1900,  For.  Rel.,  1900,  938-940.  See  also  For.  Rel,  1893,  1894  and  1896,  under 
Turkey. 


546  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS    ABROAD 

ican  citizen,  formerly  a  subject  of  Russia,  who  returns  to  that  country 
places  himself  within  the  exclusive  jurisdiction  of  Russian  law.  In 
Turkey,  that  government's  claim  to  treat  the  returned  individual 
as  a  Turkish  subject  or  to  punish  him  for  the  offense  of  unpermitted 
naturalization  abroad,  is  not  pressed,  and  expulsion  is  usually  the 
utmost  penalty  imposed. 

No  attempt  is  made  by  the  United  States  in  these  or  in  any  other 
countries  to  exempt  naturalized  citizens  from  penalties  for  offenses 
committed  prior  to  their  emigration  to  the  United  States. 

§  238.  (B)  Countries  Which  Recognize  Foreign  Naturalization  Upon 
Condition  Only. 

A  second  category  of  countries,  closely  related  to  the  first  class, 
predicate  the  recognition  of  the  American  citizenship  of  one  of  their 
subjects  upon  the  completed  performance  of  certain  obligations  to 
his  native  state,  usually  the  fulfillment  of  his  military  service,  or  upon 
a  grant  of  preliminary  consent  to  a  change  of  nationality,  which  is 
usually  withheld  until  military  service  is  performed.  With  many 
variations  in  their  requirements,  this  class  of  countries  may  be  considered 
to  include  France,  Switzerland,  Italy,  The  Netherlands,  Servia,  Bul- 
garia, Greece  (on  occasion)  and  Persia.  The  United  States  has  not 
concluded  naturalization  treaties  with  the  countries  in  either  of  the 
two  classes  named. 

These  countries  either  do  not  permit  a  renunciation  of  their  citizen- 
ship, without  consent,  during  military  age  ^  (17  to  40,  20  to  40  or  45 

'  This  is  a  qualified  denial  of  the  right  of  expatriation.  France,  Circular,  Feb.  10, 
1914  and  Mr.  Vignaud's  report  to  Sec'y  of  State  Sherman,  August  2,  1897,  For.  Rel., 
1897,  141  el  seq.  Case  of  Emile  Robin,  For.  Rel.,  1901,  156-157;  case  of  Rene  Dubuc, 
For.  Rel.,  1910,  514.  Switzerland  requires  a  specific  renunciation  of  Swiss  allegiance 
and  acceptance  thereof  by  Swiss  authorities  as  a  condition  of  recognizing  the  foreign 
naturaUzation  of  a  Switzer.  Without  such  acceptance,  it  is  not  recognized  and  Swiss 
citizenship  descends  from  generation  to  generation.  Circular  of  Jan.  8,  1901.  Were  it 
not  for  the  fact  that  the  renunciation  and  acceptance  are  mere  formalities,  Switzer- 
land would  hav(!  to  be  placed  in  the  backward  class  of  Russia  and  Turkey.  On  Swiss 
law  and  practice,  sec  Moore's  Dig.  Ill,  §§  456-458.  Bulgaria  and  Greece  proclaim  tlie 
I)rinciple  stated  in  the  text,  but  the  practice  is  not  uniform.  In  the  case  of  Greece,  the 
United  States  has  on  several  occasions  secured  release  from  service  for  a  naturalized 
citizen  of  Greek  origin.  Moore's  Dig.  Ill,  §  444.  In  the  case  of  Bulgaria  and  Greece, 
American  naturalized  citizens  of  Bulgarian  or  Greek  orgin,  are  advised  to  ascertain 


FOREIGN   NATURALIZATION  RECOGNIZED   UPON  CONDITION   ONLY      547 

generally,  although  it  varies  from  country  to  country),  or  else  consider 
foreign  naturalization  no  bar  to  liability  to  military  service.^  A  re- 
turning American  citizen,  naturalized  without  consent,  who  has  failed 
to  respond  to  the  notice  calling  him  to  military  service,  or  who  has 
merely  not  performed  his  military  duties,  is  liable  either  to  arrest  and 
trial  and  the  compulsory  performance  of  the  service,  as  in  France,^ 
Italy,^  the  Netherlands,^  Servia,^  and  Greece,^  or  to  the  payment 
of  an  annual  tax,  as  in  Switzerland.^ 

their  status  before  their  return  to  those  countries.  The  Department  of  State  does  not, 
however,  act  as  the  intermediary.  Bulgaria,  Circular,  Jan.  20,  1910.  Greece,  Cir- 
cular, Jan.  31,  1901.  Servia  does  not  recognize  a  change  of  nationality,  without 
consent,  until  the  subject  has  performed  his  military  obligations.  Circular,  April  11, 
1910.  Roumania  appears  to  molest  only  those  who  infringed  Roumanian  law  before 
emigrating.  Circular,  Dec.  18,  1913.  Persia  does  not  grant  permission  to  a  Persian 
subject  to  be  naturalized  abroad,  if  he  is  under  charge  for  a  crime  committed  in 
Persia,  or  is  a  fugitive  from  justice,  or  a  deserter  from  the  Persian  army,  or  is  in  debt 
in  Persia,  or  fled  to  avoid  pecuniary  obligations.  Persian  law  resembles  that  of  Tur- 
key in  that  unauthorized  foreign  naturalization  involves  a  prohibition  to  reenter 
Persian  territory.  If  such  a  Persian  subject  had  any  property  in  Persia  he  is  ordered 
to  sell  or  dispose  of  it.    Circular,  May  19,  1914. 

1  Italy,  Circular,  Dec.  19,  1913,  Moore's  Dig.,  §  446.  Netherlands,  Circular,  Au- 
gust 30,  1901  and  Moore's  Dig.  Ill,  §  448.  The  former  Dutch  subject  may,  however, 
avoid  service  by  having  his  name  removed  from  the  military  register  or  by  becoming 
an  American  citizen  prior  to  August  31  of  the  calendar  year  in  which  he  reaches  the 
age  of  19.  He  is  advised  to  ascertain  his  status  before  returning.  As  to  France, 
Greece,  Bulgaria,  Servia  and  Switzerland,  see  preceding  note. 

-  He  is  liable  to  both  in  France.  Dept.  of  State  circular,  Feb.  10,  1914.  There  is  a 
wide  range  of  liability. 

^  Between  the  ages  of  16  and  32,  the  Italian  is  liable  to  arrest  and  forced  military 
service.  If  returning  when  under  16,  he  is  not  molested.  If  over  32,  he  is  liable  to 
service  only  in  the  Territorial  Reserve  Army.  Exemption  from  punishment  for  past 
failure  to  appear  is  contingent  upon  comphance  with  certain  formalities,  which  may 
be  performed  at  an  Italian  Embassy  or  consulate.  Circular  of  Dec.  19,  1913;  Moore's 
Dig.  Ill,  §  446. 

*  In  the  Netherlands,  he  is  liable  to  be  treated  (1)  as  a  deserter,  if  he  did  not  re- 
spond to  the  summons  for  service,  or  (2)  to  be  enlisted  if  he  is  under  forty.  Circular 
of  August  30,  1901. 

5  He  may  be  subject  to  molestation,  for  his  imauthorized  naturalization  is  not 
recognized  in  Servia.    Circular  of  April  11,  1910. 

8  He  may  be  arrested  in  Greece.  Circular  of  Jan.  31,  1901.  The  practice  of  the 
Greek  Government  is  not  uniform. 

'  \Vhether  he  resides  in  Switzerland  or  not.  On  default,  he  is  liable  to  punishment, 
if  he  returns  to  Switzerland.    Circular  of  Jan.  8,  1901. 


.548  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

As  in  the  case  of  Russia  and  Turkey,  the  United  States  is  unable 
to  make  effective  its  legal  claim  to  the  citizenship  and  exemption 
from  military  service  of  persons,  natives  of  the  countries  mentioned 
in  this  second  group,  when  they  voluntarily  return  to  their  native 
country  and  place  themselves  within  its  jurisdiction.  Nevertheless, 
upon  proof  of  American  naturalization,  the  Secretary  of  State  almost 
uniformly  instructs  the  diplomatic  officers  of  the  United  States  to  inter- 
vene in  behalf  of  such  persons  to  relieve  them  of  duties  inconsistent 
with  American  citizenship.  At  times,  these  representations  have  suc- 
ceeded in  securing  for  these  naturalized  citizens  a  considerable  measure 
of  relief  from  obligations  and  incidental  penalties  growing  out  of  their 
former  allegiance.  In  the  absence  of  treaty,  however,  compliance 
with  such  requests  by  foreign  governments  rests  upon  comity. 

Under  the  head  of  dual  nationality,  we  shall  discuss  the  case  of 
American-bom  sons  of  the  nationals  of  countries  v/hich,  like  France, 
Italy,  Switzerland  and  other  countries,  adopt  the  principle  of  jus 
sanguinis  and  claim  the  allegiance  and  the  obligation  to  perform 
military  service  of  the  foreign-bom  sons  of  their  nationals — France, 
Switzerland,  and  other  non-treaty  countries,  regardless  of  the  naturali- 
zation of  the  father.^ 

§  239.  (C)  Countries  Which  Have  Concluded  Naturalization  Treaties 
with  the  United  States. 
A  third  category  of  countries  embraces  those  which,  while  following 
the  principles  of  the  second  class  in  their  claims  to  military  service, 
have  limited  their  right  to  the  services  of  their  expatriated  citizens  by 
certain  naturalization  treaties.  These  countries  recognize  the  doctrine 
of  voluntary  expatriation.  The  first  of  these  naturalization  treaties 
were  the  Bancroft  treaties,  concluded  in  1868  with  the  North  German 
Confederation,  Bavaria,  Baden,  WUrtemberg  and  Hesse.-  They 
were  followed  by  treaties  with  Belgium,  Great  Britain,  Sweden  and 
Norway,   Austria-Hungary  and  Denmark.^     In   1872  a  treaty  with 

1  Infra,  p.  581. 

2  These  treatises  may  be  found  in  v.  15  and  16,  Stat.  L.,  in  the  Appendix  to  Van 
Dyne,  NaturaUzation,  and  in  Malloy's  Treaties,  1910-1913. 

'  These  treaties  were  concluded  between  1868  and  1872  and  may  be  found  in 


NATURALIZATION   TREATIES    WITH    THE    UNITED    STATES  549 

Ecuador  was  concluded/  and  in  1902  one  with  Haiti.  The  last  European 
state  to  conclude  a  treaty  was  Portugal  in  1908.  Following  the  princi- 
ples of  the  Pan-American  convention  signed  at  Rio  de  Janeiro,  Aug.  13, 
1906,'-  the  United  States  concluded  naturalization  treaties  with  Peru 
(1907),  with  Honduras,  Salvador,  Nicaragua,  Uruguay  and  Brazil 
(1908)  and  with  Costa  Rica  (1911). 

There  are  two  guiding  principles  in  these  treaties  aside  from  the 
important  stipulation  recognizing  the  change  of  allegiance  of  a  subject 
naturalized  in  the  other  country.  These  are  the  continued  liability 
to  punishment  in  the  native  state  for  offenses  committed  prior  to  emi- 
gration and  the  presumption  of  loss  of  citizenship  by  two  years'  con- 
tinued residence  in  the  country  of  origin.  This  latter  principle,  first 
expressed  in  the  Bancroft  treaties  of  1868,  has  been  finally  incorporated 
into  the  Act  of  March  2,  1907,  §  2. 

In  practically  all  the  treaties,  except  the  one  with  Great  Britain 
and  the  recent  ones  with  the  Latin-American  countries,  naturaliza- 
tion and  five  years'  residence  in  the  United  States  are  required  as  con- 
ditions necessary  to  the  recognition  of  a  change  of  allegiance.  In 
the  remaining  treaties,  voluntary  naturalization  alone  is  a  sufficient 
basis  for  such  recognition. 

By  the  naturalization  treaties,  these  countries  recognize  the  Amer- 
ican naturahzation  of  their  former  nationals,  subject,  in  case  of  the 
emigrant's  return  to  his  old  country,  to  his  punishment  for  offenses 
committed  prior  to  emigration,^  particularly  the  evasion  of  an  exist- 
ing or  accrued  liability  to  military  service.  But  he  is  protected  against 
the  exaction  of  what  at  the  time  of  emigration  was  merely  a  future 
liability  to  serve.* 

The  classes  of  offenses  arising  out  of  emigration,  under  the  miUtary 
laws  of  the  continental  countries,  for  which  a  naturalized  American  citi- 

V.  16  and  17,  Stat.  L.  and  in  other  sources  above  mentioned.  A  treaty  of  1868  with 
Mexico  was  denounced  by  Mexcio  in  1882. 

^  This  treaty  was  abrogated  by  the  government  of  Ecuador,  August  25,  1892. 

^  Convention  between  the  U.  S.  and  other  powers.  Status  of  naturaUzed  citizens, 
signed  at  Rio  de  Janeiro,  August  13,  1906.    Treaty  series,  No.  575. 

'  Unless  the  right  to  punish  has  been  lost  by  lapse  of  time  as  provided  by  law. 
The  treaties  generally  provide  that  the  act  of  emigration  itself  is  not  punishable. 

*  Westlake,  op.  cit.,  I,  231. 


550  THE    DIPLOMATIC    PROTP:CTION    OF    CITIZENS   ABROAD 

zen  may,  upon  his  return  to  his  native  country,  be  arrested  and  punished, 
are  set  out  in  the  law  of  Austria-Hungary  as  follows:  (1)  If  he  was  ac- 
cepted and  enrolled  as  a  recruit  in  the  army  before  the  date  of  emigration, 
although  he  had  not  been  put  in  service;  (2)  if  he  was  a  soldier  when  he 
emigrated,  either  in  active  service  or  on  leave  of  absence;  (3)  if  he  was 
summoned  by  notice  or  by  proclamation  before  his  emigration  to  serve  in 
the  reserve  or  mihtia  and  failed  to  obey  the  call;  (4)  if  he  emigrated  after 
war  had  broken  out.^  The  penalty  for  such  violation  of  the  law  is 
either  fine,  imprisonment  or  the  compulsory  accomplishment  of  the 
defaulted  military  service,  sometimes  for  an  additional  period  as  a 
penalty.    The  law  varies  from  country  to  country.^ 

§  240.  Germany  and  Austria-Hungary. 

With  regard  to  Germany,  the  naturalization  treaties  have  received 
an  interpretation  which  warrants  special  notice.  The  treaties  with 
the  German  States,  with  the  exception  of  that  with  Baden,  provide 
that  a  renewal  of  residence  in  the  native  country  without  the  intent 
to  return  to  the  United  States  shall  be  construed  as  a  renunciation 
of  American  naturalization,  and  that  this  intent  not  to  return  may 
be  held  to  exist  when  the  residence  exceeds  two  years  in  duration. 
The  German  authorities  have  construed  this  renunciation  as  practi- 
cally equivalent  to  a  reacquisition  of  German  nationality,^  and  have 

'  Circular  notice,  Austria-Hungary,  May  15,  1912,  For.  Rel.,  1910,  p.  70;  Belgium, 
Oct.  14,  1913;  Denmark,  April  29,  1913;  Germany,  March  29,  1912;  Norway,  Feb.  9, 
1901;  Sweden,  Feb.  9,  1901;  Portugal,  July  18,  1910.  The  military  law  varies  from 
country  to  country  but  the  general  offenses  of  the  Austro-Hungarian  law  are  typical 
of  most  European  countries. 

^  The  Circular  notices  issued  by  the  Dept.  of  State  for  each  of  the  important 
countries  requiring  military  service  present  in  brief  form  the  scope  of  the  obligation 
to  military  service,  the  punishable  offenses  and  in  a  general  way,  the  penalties  in- 
volved, and  the  effect  of  the  naturalization  treaty,  if  any,  between  the  U.  S.  and  the 
country  in  question.  Diplomatic  correspondence  relating  to  the  operation  of  the 
naturalization  treaties  with  the  more  important  countries  with  which  they  have 
been  concluded  may  be  found  in  Moore's  Dig.  HI,  §§  39Q-399. 

3  With  the  exception  of  Bavaria.  The  treaty  with  Bavaria  expressly  provides 
that  by  renewal  of  native  residence  the  individual  does  not  recover  his  native  citizen- 
ship. The  German  authorities,  at  least,  have  claimed  that  it  subjected  the  person 
who  had  thus  resumed  his  native  residence  for  two  years  to  the  obligations  of  military 
service,  although  they  admitted  that  legally  he  had  not  become  repatriated  in  Ger- 
many.   For.  Rel.,  1885,  393,  399,  417. 


GERMANY   AND   AUSTRIA-HUNGARY  551 

even  made  this  construction  applicable  to  the  minor  children  of  re- 
turned naturalized  citizens  who  resided  in  Germany  over  two  years, 
notwithstanding  the  birth  of  such  children  in  the  United  States.  When 
such  minor  children  reached  the  military  age,  they  were  called  upon 
to  perform  military  service.  As  this  gave  rise  to  vigorous  remonstrance 
by  the  United  States,  which  was  not  successful  in  affording  relief  in 
all  cases,  Germany,  with  a  view  to  avoid  the  unpleasant  situation 
which  developed,  adopted  the  expedient  of  expeUing  such  minor  chil- 
dren from  the  country,  instead  of  requiring  military  service. 

Again,  while  the  treaties  insure  the  immunity  from  military  service 
of  naturalized  citizens  of  German  origin  who  emigrated  before  they 
were  seventeen  years  old,  the  German  government,  nevertheless, 
claims  and  exercises  the  right  of  expelling  such  persons  on  the  pre- 
sumption that  they  left  Germany  in  order  to  evade  military  service, 
and  that  their  permanent  residence  in  Germanj'^  is  contrary  to  the 
pubhc  welfare.  The  United  States  has  unsuccessfully  remonstrated 
against  this  practice  of  expulsion.^ 

Inasmuch  as  Alsace-Lorraine  became  a  part  of  Germany  since  our 
naturalization  treaties  with  the  other  German  States  were  negotiated, 
American  citizens,  natives  of  that  province,  may  be  held  liable  to 
military  service  or  fine  for  evasion,  on  return,  notwithstanding  their 
naturalization.  Such  persons  are  informed  ^  that  they  may  be  sub- 
jected to  inconvenience  and  possible  detention  by  the  German  author- 
ities if  they  return  without  having  sought  and  obtained  permission 
to  do  so  from  the  imperial  Governor  at  Strassburg.  German}'  has 
never  admitted  the  somewhat  specious  argument  of  the  United  States 
that  the  Bancroft  treaties  covered  Alsace-Lorraine  and  thus  far  a 
new  treaty  specifically  including  that  province  has  not  yet  been  nego- 
tiated.^ 

The  Austro-Hungarian  treaty  contains  no  provision  by  which  a 

*  The  diplomatic  correspondence  relating  to  the  practice  of  expulsion  of  naturahzed 
citizens  from  Germany  is  set  out  at  considerable  length  in  Moore's  Dig.  Ill,  §  393. 
The  position  of  the  returning  German  is  briefly  stated  in  the  circular  notice  of 
March  29,  1912.  See  also  Webster,  P.,  Citizenship,  pp.  228-230,  and  annual  vol- 
umes of  For.  Rel.,  s.  V°.  Germany. 

*  Circular  notice,  March  29,  1912,  Germany. 

» See  Moore's  Dig.  Ill,  §  392;  For.  Rel.,  1906,  64^-653;  1907,  I,  511. 


552  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

renunciation  of  American  naturalization  is  presumed  from  a  residence 
of  more  than  two  years  in  Austria-Hungary.  Thus  it  has  happened 
that  many  subjects  of  that  country,  after  obtaining  naturalization 
in  the  United  States,  return  to  their  native  country  intending  to  live 
there  permanently,  and  invoke  their  American  citizenship  when  called 
upon  to  fulfill  military  duty.  This  abuse  of  naturalization  papers 
induced  the  government  of  Austria-Hungary  in  1899,^  in  1909,^  and 
on  other  occasions  to  suggest  an  amendment  or  abrogation  of  the  treaty. 
Since  1907,  there  is  less  ground  for  objections  to  the  treaty  than  there- 
tofore, since  by  the  Act  of  March  2,  1907,  the  presumption  of  expatria- 
tion of  a  naturalized  citizen  arises  after  two  years'  residence  in  the 
country  of  origin.  The  United  States  has  not  objected  to  the  expul- 
sion by  Austro-Hungarian  authorities  of  naturalized  citizens  who,  by 
boasting  of  their  immunity  from  service  in  their  native  communities, 
are  considered  detrimental  to  the  public  welfare.^  The  United  States 
has,  however,  generally  demanded  that  the  "pernicious  character 
of  the  returning  person  should  be  affirmatively  shown  in  justification 
of  the  extreme  resort  to  expulsion."  ^ 

§  241.  Renunciation  of  Naturalization. 

It  has  been  recognized  from  an  early  period  of  our  history  that 
naturalization  may  be  renounced  and  protection  forfeited  by  acts 
inconsistent  with  the  retention  of  American  citizenship.  This  fact 
was  first  prominently  illustrated  by  the  frequency  with  which  natives 
of  other  countries  have  become  naturalized  here  for  the  purpose  of 
returning  to  their  homes  or  seeking  a  residence  in  third  countries  with 
•the  benefit  of  American  protection.  The  Executive,  therefore,  had 
early  to  deal  with  the  case  of  persons  who  had  been  naturalized  in  the 
United  States,  not  with  any  real  intention  of  permanent  residence  in 
this  country,  but  for  the  purpose  of  availing  themselves  of  the  advan- 
tages of  citizenship  while  evading  its  obligations  by  continuous  or 

»  For.  Rel.,  1899,  pp.  79-80. 

2  For.  Rel.,  1909,  35. 

»  Moore's  Dig.  Ill,  §  399.  See  also  For.  Rel.,  1887,  1894  and  1900,  s.  V°.,  Austria- 
Hungary,  and  supra,  p.  53. 

♦  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Herdliska,  July  9,  1901,  For.  Rel.,  1901,  p.  10; 
Message  of  President  McKinley,  Dec.  3,  1900,  For.  Rel.,  1900,  xvi. 


RENUNCIATION    OF   NATURALIZATION  553 

prolonged  residence  abroad.  Apart  from  the  provisions  in  the  few 
naturalization  treaties  that  had  been  concluded,  the  Executive  had, 
up  to  the  Act  of  March  2,  1907,  no  guide  by  which  to  determine  how 
great  a  period  of  foreign  residence  entailed  a  forfeiture  of  American 
naturalization  and  protection.  The  rule  followed  was  to  establish, 
if  possible,  the  intent  of  the  person  to  maintain  his  American  citizen- 
ship by  returning  to  the  United  States;  and  to  determine  this  intent 
not  merely  residence  abroad  for  a  prolonged  period  was  an  element 
to  be  considered,  but  all  the  attendant  circumstances  of  the  residence 
abroad,  e.  g.,  whether  it  was  for  purposes  of  health,  education,  in  rep- 
resentation of  American  business  houses,  or  whether  it  indicated  a 
complete  abandonment  of  American  citizenship.^ 

Evidence  of  the  absence  of  an  intent  to  return  to  the  United  States 
is  established  by  various  tests.  By  all  but  a  few  ^  of  the  naturahzation 
treaties  concluded  by  the  United  States,  the  reestablishment  of  resi- 
dence in  the  native  country  with  the  intent  not  to  return  to  the  United 
States  is  equivalent  to  a  renunciation  of  American  citizenship,  and 
two  years'  residence  in  the  native  country  may  be  regarded  as  evidence 
of  an  intent  not  to  return  to  the  United  States.  The  only  early  treaty 
in  which  this  two  years'  residence  rule  is  declared  to  raise  a  rebuttable 
presumption  of  expatriation  is  the  one  with  Ecuador,  but  the  United 
States  has  regarded  the  residence  merely  as  a  presumption,  as  a  rule 
of  evidence,  in  the  case  of  all  the  other  treaties  in  which  the  provision 
as  to  two  years'  residence  is  found.^  The  German  states,  however, 
appear  to  have  considered  it  as  a  conclusive  rule,  and  declared  the 
American  citizenship  forfeited  by  mere  residence,  without  affording 
any  opportunity  to  show  an  intent  to  return.  In  the  more  recent 
treaties  of  the  United  States,  which  include  treaties  with  several  of 
the  Latin-American  states,  it  has  been  expresslj^  declared  that  the 

'  These  questions  will  be  considered  more  fully  under  the  head  of  expatriation, 
infra,  §  324  el  seq.  For  the  practice  in  the  matter  of  renunciation  of  naturalization 
prior  to  1906,  see  Moore's  Dig.  Ill,  §§  470-474. 

^  Those  with  Belgium,  Baden,  Austria-Hungary  and  Great  Britain  are  the  excep- 
tions. 

'  /.  e.,  with  the  North-German  Union,  Hesse,  Wiirtemberg,  Bavaria,  Demnark, 
Norway  and  Sweden.  See  the  comparison  of  the  treaties  as  made  by  Webster,  P.. 
op.  cit.,  175-176,  and  Secretary  Bayard's  view  as  expressed  in  an  instruction  to 
Mr.  Cox,  Nov.  28,  1885,  For.  Rel.,  1885,  pp.  885,  889. 


554  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

presumption  may  be  rebutted  by  evidence  to  the  contrary.  More- 
over, it  is  to  be  noted  that  such  foreign  residence  does  not  repatriate 
the  naturalized  citizen  in  his  native  land,^  but  merely  raises  a  pre- 
sumption that  his  American  naturaUzation  has  been  renounced. 

In  the  case  of  all  countries,  in  order  to  justify  diplomatic  protection 
or  the  issuance  of  a  passport,  it  must  be  shown  that  there  is  in  good 
faith  an  intention  to  return  to  the  United  States.  This  has  been  the 
rule  before  and  after  the  Act  of  1907.  Registration  is  one  of  the  best 
methods  of  manifesting  the  necessary  intent  to  return.  Evidence  of  the 
absence  of  an  intent  to  return,  prior  to  1907,  was  in  many  cases  diffi- 
cult to  secure.  Of  course  foreign  naturalization  or  taking  preliminary 
steps  thereto,  voluntary  entrance  into  the  civil  or  military  service 
of  another  government,  express  renunciation  or  acts  amounting  thereto 
are  clearly  to  be  regarded  as  evidence  of  the  absence  of  an  intent  to 
return.  Usually,  however,  the  intent  has  had  to  be  inferred  from  various 
attendant  circumstances  and  in  weighmg  these,  prolonged  residence 
abroad  has  been  perhaps  more  decisive  than  any  other  single  factor.^ 

§  242.  Act  of  March  2,  1907. 

Under  the  new  rule  estabUshed  by  the  Act  of  March  2,  1907,  when 
a  naturalized  citizen  leaves  this  country  instead  of  residing  in  it,  two 
years'  residence  in  the  country  of  his  origin  or  five  years'  residence 
in  any  other  country  creates  a  presumption  of  renunciation  of  the 
citizenship  acquired  here,  and  unless  that  presumption  is  rebutted 
by  showing  some  special  and  temporary  reason  for  the  change  of  resi- 

'  See,  however,  the  convention  signed  at  Rio  de  Janeiro  by  various  American 
states,  August  13,  1906,  which  the  United  States  ratified  January  13,  1908.  Treaty 
series,  575.  It  is  there  provided  that  "If  a  citizen,  a  native  of  any  of  the  countries 
signing  the  present  convention,  and  naturaHzed  in  another,  shall  again  take  up  his 
residence  in  his  native  country  without  the  intention  of  returning  to  the  country 
in  which  he  has  been  naturaHzed,  he  will  be  considered  as  having  reassumed  his 
original  citizenship,  and  as  having  renounced  the  citizenship  acquired  by  the  said 
naturalization."  An  account  of  the  countries  which  have  ratified  the  Convention 
and  its  status  in  various  other  countries  is  printed  in  5  R.  D.  I.  prive  (1911),  472-473. 
See  the  Venezuelan  law  of  May  24,  1913,  §  7. 

^  Many  cases  in  which  long  residence  abroad  has  been  held  to  create  a  presump- 
tion of  renunciation  of  citizenship  may  be  found  in  Moore's  Dig.  Ill,  §§  470,  471, 
and  475. 


DOMICIL   AS   CONFERRING    NATIONAL   CHARACTER  555 

deiice,  the  obligation  of  protection  by  the  United  States  is  deemed  to  be 
ended.  The  presumption  may  be  overcome  by  showing  that  the  per- 
son concerned  is  residing  abroad  principally  as  a  representative  of 
American  trade  and  commerce,  or  that  he  is  residing  abroad  for  health 
or  education,  and  in  all  these  cases  intends  to  return  to  the  United 
States  permanently  to  reside,  or  that  he  has  been  prevented  by  some 
unforeseen  and  controlling  exigency  from  returning  and  intends  to 
return  upon  the  removal  of  the  preventing  cause.  ^ 

The  meaning  of  the  statute  was  for  some  time  in  doubt.  It  is  now 
agreed,  however,  that  it  is  intended  to  furnish  a  definite  rule  for  de- 
termining when  protection  shall  be  withdrawn  from  naturalized  citi- 
zens residing  abroad,  and  that  the  presumption  as  to  expatriation 
which  is  raised  by  the  foreign  residence  never  becomes  conclusive, 
but  is  rebutted  by  a  voluntary  return  to  this  country  to  reside  per- 
manently.- The  Act  for  the  first  time  supplies  a  clear  statutory  sanc- 
tion for  the  withdrawal  of  protection  from  that  large  class  of  false 
citizens  who  acquire  American  citizenship  not  with  the  intention  to 
reside  in  the  United  States  and  assume  the  duties  of  citizenship,  but 
for  the  purpose  of  residing  abroad  and  using  their  American  naturaliza- 
tion as  a  cloak  to  escape  the  performance  of  obligations  in  their  native 
or  other  countries. 

DOMICIL   AS   CONFERRING   NATIONAL   CHARACTER 

§  243.  Domicil  and  Nationality. 

It  has  been  observed  that  in  the  period  of  history  when  people  were 
principally  attached  to  the  soil,  before  nations  and  nationalit}'  in  their 
modem  sense  became  distinct  poUtical  and  legal  concepts,  domicil, 
or  the  permanent  home,  was  the  test  and  criterion  of  status,  civil  and 
political.'^  With  the  rise  of  the  modem  state  in  Europe,  however, 
nationality  became  the  test  of  civil  and  political  status.     This  rule 

»  Circular  of  April  19,  1907,  Expatriation,  pp.  2-3,  For.  Rel.,  1907,  I,  3. 

-  Gossin's  case,  28  Op.  Atty.  Gen.  504,  For.  Rel.,  1910,  420.  Department  of  State 
circulai ,  December  22,  1910.  Where  the  return  is  involuntary,  as  by  deportation  from 
abroad,  the  presumption  is  not  rebutted.  Akulin's  case  in  Russia,  Op.  Atty.  Gen., 
July  3,  1914.  The  statute  (§  2)  is  not  retroactive.  Department  circular,  July  21,  1910. 
See  a  valuable  article  by  Richard  Flournoy,  Jr.,  Chief  of  the  Bureau  of  Citizenship, 
Department  of  State,  8  A.  J.  I.  L.  (1914),  477,  481-484. 

'  Supra,  p.  24. 


556  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS    UOABAD 

is  adopted  at  the  present  time  in  practically  all  the  countries  of  con- 
tinental Europe,  the  principle  having  received  renewed  stimulus  through 
the  Italian  school  of  Mancini.  In  England  and  the  United  States, 
however,  domicil  has  retained  practically  all  its  importance  as  the 
test  of  the  civil  status  of  the  person,  and  nationality  or  citizenship 
has  become  the  test  of  political  status.^ 

Domicil  is  the  place  where  a  person  resides  as  his  permanent  home 
with  the  fixed  intention  of  constantly  remaining  there,  to  which,  when- 
ever he  is  absent,  he  has  the  intention  of  returning. - 

Much  confusion  has  arisen  as  to  the  true  relation  between  domicil 
and  national  character  by  reason  of  three  different  factors:  first,  the 
occasional  expression  of  executive  opinion  to  the  effect  that  domicil 
in  the  United  States  confers  upon  the  person  domiciled  a  national 
character  as  American  and  the  right  to  American  protection — a  view 
expressed  by  Secretary  Marcy  in  the  Koszta  case — and  that  perma- 
nent residence  or  domicil  abroad  of  an  American  citizen  amounts 
to  a  voluntary  renunciation  of  American  citizenship  and  the  right 
to  diplomatic  protection,  or  indeed,  that  it  constitutes  an  act  of  ex- 
patriation; ^  secondly,  the  universal  rule  of  American  and  English 
courts  in  matters  of  prize  law  to  the  effect  that  the  domicil  of  a  merchant 
in  belligerent  or  neutral  territory,  fixes  the  character  of  his  property 
at  sea  as  enemy  or  neutral,  regardless  of  his  national  allegiance;  ^ 

^  The  question  of  domicil  is  almost  entirely  within  the  scope  of  the  conflict  of 
laws;  hence  it  cannot  be  discussed  here  except  in  its  relation  to  national  character. 
Domicil  is  fully  discussed  in  the  works  on  the  conflict  of  laws  by  Dicey  (American 
notes  by  J.  B.  xMoore,  1896;  2d  English  ed.  1908),  Story  (8th  ed.,  1883),  Wharton 
(3d  ed.,  1905),  and  Minor  (1901)  and  in  the  works  on  private  international  law  by 
Bar  (2d  ed.,  GilUspie's  trans.,  1892),  Foote  (4th  ed.,  1914),  Phillimore  (v.  4  of  his 
Commentaries,  3d  ed.,  1889),  Savigny  (2d  ed.,  Guthrie's  trans.,  1880)  and  Westlake 
(5th  ed.,  1912).  See  also  the  special  works  on  domicil  by  Dicey  (1879),  Phillimore 
(1847),  Round  (1861),  Jacobs  (1887),  and  Bentwich  (1911). 

^  See  the  definitions  of  domicil  by  Phillimore,  Story  and  Wharton  quoted  by  Moore 
in  the  Digest  III,  813.  The  Roman  law  definition  of  domicil  was  verj'  similar.  See 
Ortolan,  Generalization  of  Roman  law,  573,  cited  by  Morse,  op.  cit.,  93.  See  also 
Guier  v.  Daniel,  1  Binney,  349;  Medina  v.  Costa  Rica,  Moore's  Arb.  2587  and  Flutie 
V.  Venezuela,  Ralston,  38,  43. 

'  The  Koszta  case  is  discussed,  infra,  §  2.50.  The  effect  of  prolonged  residence 
abroad,  infra,  §  324  et  seq. 

*  Supra,  p.  110.  This  doctrine  of  trade  domicil  in  war  will  be  more  fully  discussed 
presently. 


DOMICIL   AS   CONFERRING    NATIONAL   CHARACTER  557 

and  thirdly,  the  rule  that  permanent  residence  of  a  person  in  bellig- 
erent territory  subjects  him  and  his  property  there  situate  to  all  the 
risks  of  war.^ 

Influenced  largely  by  one  or  the  other  of  these  doctrines  the  argu- 
ment has  occasionally  been  made  that  in  the  interpretation  of  protocols 
of  arbitration  of  private  claims  the  term  "citizen"  or  "subject"  must 
be  understood  in  a  so-called  "larger"  sense  of  international  law,  ac- 
cording to  which  all  persons  are  "citizens"  or  "subjects"  who  by 
permanent  domicil  are  within  the  protection  of  the  govenmient  under 
which  they  reside,  rather  than  in  the  strict  sense  of  municipal  law  which 
construes  the  term  as  meaning  absolute  citizenship  or  paramount 
allegiance  to  a  sovereign.-  Such  an  argument  has  some  support  in 
certain  dicta  of  the  British  Privy  Council  passing  on  appeals  from 
awards  of  the  Board  of  Commissioners  under  the  treaty  of  1814  be- 
tween Great  Britain  and  France,^  and  in  certain  decisions  of  English 
common-law  courts.^  The  decisions  of  prize  courts  and  other  opinions 
to  the  effect  that  belUgerent  domicil  impresses  a  certain  national  char- 

1  Supra,  p.  251. 

2  This  was  the  substance  of  Mr.  Hale's  argument  before  the  British- American 
Claims  Commission  of  May  8,  1871.  His  argument  was  rejected  by  the  Commission. 
Barclay  (Gt.  Brit.)  v.  U.  S.,  Moore's  Arb.  2727,  Hale's  Rep.  50.  See  also  Brief  of 
U.  S.  Solicitor  in  case  of  Jonas  P.  Levy,  Sen.  Misc.  Doc.  251,  35th  Cong.,  1st  sess. 
(v.  4),  13-15.  See  also  Sec'y  Marcy's  celebrated  argument  in  Koszta's  case,  par- 
ticularly part  found  in  Moore's  Dig.  Ill,  832. 

^  In  Druraraond's  case,  2  Knapp  P.  C.  Rep.  295,  the  claim  of  a  British  subject 
against  France  was  rejected  on  the  ground  that  by  French  law  he  was  also  a  French 
subject.  This  case,  frequently  cited  to  support  Mr.  Hale's  argument,  is  therefore 
not  in  point.  In  Countess  Conway's  case  (2  Knapp  P.  C.  Rep.  364,  367),  Baron 
Parke  e.xpressed  the  opinion,  as  dictum,  that  had  the  Countess  been  domiciled  in 
England  she  would  have  been  entitled  to  British  protection.  In  Andre's  case  (2 
Knapp  P.  C.  Rep.  365,  368),  not  fully  reported,  it  seems  that  claimant's  domicil 
in  England  at  the  time  of  the  confiscation  of  her  property  in  France  entitled  her  to 
British  protection. 

*  Marryat  v.  Wilson  (1798),  8  T.  R.  (Dumford  &  East),  31,  45;  1  Bosanquet  and 
Puller,  429,  443  (dictum);  McConneU  v.  Hector  (1802),  3  B.  &  P.  113  (British  subject 
commercially  domiciled  in  enemy  territory,  held  disentitled  to  sue  in  British  courts) ; 
Tabbs  V.  Bendelack  (1802),  3  B.  &  P.  207,  note  (commercial  domicil  of  American 
citizen  in  Great  Britain  affected  him  with  character  of  British  subject);  BeU  v. 
Reid  (1813),  Maule  &  Selwyn,  726,  733  (British  subject  relieved  from  penalties  of 
illicit  trade  with  Great  Britain's  enemy,  Denmark,  by  reason  of  his  domicil  in  a 
neutral  country,  the  United  States);  Albretcht  v.  Sussman  (1813),  2  Ves.&  Beam.  323. 


558  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

acter  upon  the  property  of  the  person  so  domiciled  and  for  belligerent 
purposes  temporarily  suspends  his  paramount  allegiance  have  occa- 
sionally been  erroneously  cited  in  support  of  a  contention  that  for 
civil  purposes  and  in  time  of  peace  domicil  conferred  national  character.^ 
The  language  of  some  decisions,  unless  understood  as  having  relation 
only  to  trade  domicil  in  time  of  war,  is  indeed  calculated  to  mislead.^ 
The  misinterpreted  declarations  of  Secretary  of  State  Marcy  in  Koszta's 
case,^  to  the  effect  that  domicil  plus  a  declaration  of  intention  con- 
ferred a  right  to  American  protection,  led  the  commissioners  of  the 
American-Mexican  commission  under  the  protocol  of  July  4,  1868 — 
until  Thornton  became  the  umpire — to  hold  that  domicil  in  the  United 
States  combined  with  a  declaration  of  intention  conferred  American 
citizenship  and  protection.'* 

§  244.  Domicil  Neither  Confers  nor  Forfeits  Citizenship. 

The  better  rule  and  the  one  which,  apart  from  the  special  matter 
of  belligerent  domicil,  has  been  practically  uniformly  adopted  is  that 
domicil  neither  confers  nor  forfeits  citizenship.^  This  is  believed  to 
be  the  correct  principle,  notwithstanding  the  executive  declaration 
to  the  effect  that  the  establishment  of  a  domicil  abroad  with  the  in- 
tention of  not  returning  to  the  United  States  may  be  construed  as 


1  Kent  appears  to  have  fallen  into  this  error  (1  Commentaries,  78,  79),  and  Sec'y 
Marcy  in  Koszta's  case  relied  largely  upon  Kent,  Moore's  Dig.  Ill,  832.  Cockburn 
correctly,  it  is  believed,  considers  this  position  "altogether  inadmissible."  Na- 
tionality, 203,  204. 

2  E.  g.,  The  Pizarro,  2  Wheat.  227,  to  the  effect  that  by  the  law  of  nations,  a  person 
domiciled  in  a  country,  and  enjoying  the  protection  of  its  sovereign  is  deemed  a 
subject  of  that  country.    See  also  the  Charming  Betsey,  2  Cranch,  64. 

^  Infra,  §§250,251. 

^  Jarr  &  Hurst  (U.  S.)  v.  Mexico,  Moore's  Arb.  2707  and  the  cases  following  in 
Moore's  Arb.  Mr.  Ashton's  briUiant,  if  somewhat  specious  argument  (ibid.  2708) 
appears  to  have  led  the  American  commissioner,  Mr.  Wadsworth,  into  the  error. 
Thornton  declined  to  consider  a  declaration  of  intention  or  domicil,  singly  or  to- 
gether, as  conferring  citizenship.    Wilkinson  (U.  S.)  v.  Mexico,  ibid.  2720. 

^  See  Mr.  Ashton's  able  argument  in  De  Leon  v.  Mexico,  No.  593,  July  4,  1868, 
V.  Ill,  392-405;  IV,  .50-51  parai)hrased  in  Moore's  Arb.  2696-2706.  See  also  Adlam 
(Gt.  Brit.)  V.  U.  S.,  May  8,  1871,  ibid.  2.552;  Barclay,  ibid.  2721,  2728;  Wilkinson, 
ibid.  3736.  See  also  Lem  Moon  Sing  v.  U.  S.  (1895),  158  U.  S.  538,  547;  Lau  Ow  Bew 
V.  U.  S.,  144  U.  S.  47,  62;  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698,  724,  and  infra,  p.  690. 


BELLIGERENT   DOMICIL  559 

an  act  of  voluntary  expatriation,'  for  in  these  cases  the  foreign  doraicil 
is  only  one  of  the  tests  by  which  the  intent  to  renounce  American 
citizenship  is  determined. 

§  245.  Belligerent  Domicil. 

Reference  has  already  been  made  ^  to  the  Anglo-American  doctrine 
of  belligerent  or  commercial  domicil,  which  differs  from  civil  domicil 
in  that  it  does  not  require  residence  with  the  intention  to  establish 
a  permanent  home,  but  merely  establishment,  not  necessarily  perma- 
nent, with  the  intention  to  engage  in  business.  Actual  physical  resi- 
dence of  the  owner  is  not  even  required  to  affect  property  with  the 
political  character  of  the  country  in  which  the  house  of  trade  whence 
the  property  originates  is  established.^  The  unfortunate  use  of  the 
Avord  "domicil"  in  relation  to  two  concepts  so  different  as  civil  and 
commercial  domicil  has  contributed  to  the  confusion  surrounding  the 
effects  upon  national  character  of  a  foreign  commercial  residence. 
The  rule  as  to  commercial  domicil  adopted  by  English  and  American 
courts  must  be  understood  as  furnishing  a  criterion  to  determine  the 
political  character — enemy,  friendly,  or  neutral — of  private  property 
at  sea  in  time  of  war.''  In  other  words,  the  property  of  a  merchant 
acquires  the  political  character  of  the  nation  in  which  he  carries  on 
his  trade. 

It  is  also  a  rule  of  the  Anglo-American  system,  applied  particularly 
to  partnership  property,  that  while  residence  in  a  neutral  country 
will  not  protect  a  merchant's  share  in  a  house  established  in  the  enemy's 
country,^  residence  in  the  enemy's  country  will  condemn  his  share 

1  Infra,  p.  690. 

^  Supra,  pp.  110,  253. 

'  See  Dicey's  definition  of  commercial  belligerent  domicil  supra,  p.  254  and  refer- 
ences to  articles  on  trade  domicil  in  war  by  Baty,  Bentwich  and  Westlake,  supra, 
p.  Ill,  note.  See  also  references  to  works  by  Schuster,  Trotter,  and  Page,  cited 
supra,  p.  253.     See  also  Story's  definition  and  reasoning  in  the  San  Jose  Indiana, 

2  Gallis.  268,  286,  and  Lord  Lindley  in  Janson  v.  Driefontein  Cons.  Mines  [1902], 
484,  505. 

*  See  decisions  of  municipal  courts  quoted,  paraphrased,  and  cited  in  Moore's 
Dig.  VII,  §  1189;  Wharton's  Dig.  Ill,  §  3.52;  Duer  on  Marine  insurance,  524-.528. 
6  The  Friendschajt,  4  ^Vheat.  105;  The  San  Jose  Indiana,  2  Gall.  268;  The  Cheshire, 

3  Wall.  231;  The  William  Bagaley,  5  Wall.  377;  Moore's  Dig.  VII,  §  1192. 


560  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

in  a  house  established  in  a  neutral  country.^  The  lack  of  reciprocity 
in  this  rule  indicates  the  partiality  of  the  Anglo-American  system 
for  the  rights  of  captors.  Even  if  owned  by  a  loyal  citizen  of  the  coun- 
try of  the  captors,  property  emanating  from  enemy  territory  bears 
the  impress  of  enemy  character.^ 

The  distinction  between  civil  and  commercial  domicil,  and  the 
special  effects  of  commercial  domicil  upon  property  in  time  of  war, 
make  it  clear  that  the  same  individual,  in  reference  to  different  trans- 
actions, may  sustain,  during  the  same  period  of  time,  two  different, 
and  even  opposite,  national  characters.^ 

When  a  neutral  merchant,  resident  in  neutral  territory,  is  habitually 
engaged  in  a  trade  with  a  country  which,  by  the  outbreak  of  war, 
becomes  hostile,  he  has  been  allowed  a  reasonable  time  to  withdraw 
from  the  trade  without  subjecting  his  goods  to  confiscation.'*  As 
observed  by  Sir  Wilham  Scott  in  The  Indian  Chief, ^  "the  character 
that  is  gained  by  residence  ceases  by  non-residence.  It  is  an  adven- 
titious character  which  no  longer  adheres  to  him  from  the  moment 
he  puts  himself  in  motion  bona  fide  to  quit  the  country  sine  animo 
revertendi."  Where  a  neutral,  however,  was  domiciled  in  belUgerent 
territory  and  did  not  actually  carry  out  his  intention  to  depart  until 
a  year  after  the  outbreak  of  war,  the  Supreme  Court  of  the  United 
States  decUned  to  relax  the  rule,  and  condemned  the  property  of  Amer- 
ican citizens  who  had  been  caught  by  the  outbreak  of  war  in  1812 
with  a  commercial  domicil  in  England,  notwithstanding  the  mani- 
festation of  their  desire  to  return  to  the  United  States.®    Chief  Jus- 

>  Dana's  Wheaton,  §  335;  Westlake,  II,  141-142  (1907  ed.);  Oppenheim,  II,  §§  88, 
90;  Bentwich,  142;  Duer  on  Marine  insurance,  §§  42,  45;  The  Antonia  Johanna 
(1816),  1  Wheaton,  159. 

2  The  Gray  Jacket,  5  Wall.  342;  The  Venus,  8  Cranch,  253;  The  Frances,  8  Cranch, 
335. 

'  The  Jonge  Klassima,  5  C.  Rob.  302;  Janson  v.  Driefontein  ConsoUdated  Mines 
(1902),  A.  C.  505,  506. 

*  The  Jacobus  Johannes  and  the  Ospray,  cited  by  Sir  William  Scott  (Lord  Stowell) 
in  the  Vigilantia,  1  Rob.  14.    See  Duer,  op.  cit.,  §  42. 

^  3  Rob.  12,  20.  See  also  U.  S.  v.  Guillon,  11  How.  45,  60;  The  Frances,  8  Cranch, 
335,  366. 

•  The  Verius,  8  Cranch,  253.  The  property  condemned  was  shipped  before  the 
outbreak  of  war. 


EFFECT   OF   DOMICIL   BEFOKE    INTERNATIONAL   TRIBUNALS  561 

tice  Marshall's  dissent  ^  from  this  decision  on  the  ground  that  a  neu- 
tral merchant  should  have  a  reasonable  time  to  withdraw  from  a  coun- 
try and  a  trade  which  has  suddenly  become  hostile,  has  had  the  approval 
of  Chancellor  Kent  and  of  other  authorities,  and  has  been  followed 
by  the  courts.- 

§  246.  Effect  of  Domicil  before  Interaational  Tribunals. 

The  Anglo-American  doctrine  as  to  trade  domicil  in  war  in  its  rela- 
tion to  national  character  has  been  followed  by  international  and 
domestic  commissions  acting  under  protocols  of  arbitration.'^  In- 
ternational commissions,  however,  have  not  alwaj^s  confined  the  rule 
to  its  limited  application  to  property  at  sea  for  purposes  of  prize  law, 
but  have  at  times  extended  the  effects  of  foreign  domicil  so  as  to  confer 
national  character  for  civil  purposes.  Thus,  in  the  case  of  Raborg 
V.  Peru,''  the  commission  adopted  the  language  of  Kent  to  the  effect 
that  "if  a  person  goes  into  a  foreign  country  and  engages  in  trade 

1  The  Venus,  8  Cranch,  315. 

2  The  Gerasiino,  11  Moore  P.  C.  88,  96  {dictum);  The  Ariel,  11  Moore,  P.  C.  119; 
The  Gray  Jacket,  5  Wall.  342;  The  William  Bagaley,  5  Wall.  377;  Westlake,  II,  144- 
145;  Wharton,  III,  344-345.  Eleven  months  was  considered  too  long  a  time  for  the 
withdrawal  of  property  to  escape  condemnation.    The  St.  Lavyrence,  9  Cranch,  120. 

'  Claims  of  American  citizens  who  had  established  houses  of  commerce  with  foreign- 
ers in  France,  England,  or  other  foreign  countries  were  excluded  from  the  benefits 
of  the  treaty  of  April  30,  1803  between  the  U.  S.  and  France,  art.  V.,  Malloy  I,  514. 
See  Rules  of  decision  of  commission  distributing  French  indemnity  of  1803,  Moore's 
Arb.  4442,  4445.  The  board  of  commissioners  under  the  treaty  of  July  4,  1831  with 
France  confined  the  rule  that  trade  domicil  is  the  criterion  of  citizenship  "strictly 
to  matters  of  prize  law,"  and  did  not  extend  its  application  further.  Kane's  Notes, 
1836,  p.  18,  Moore's  Arb.  4471-72.  See  also  The  Pizarro,  2  Wheat.  228;  Murray  v. 
Charming  Betsey,  2  Cranch,  120. 

The  general  rule  was  followed  in  Prats  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's 
Arb.  2890,  Ferrer,  ibid.  2721  (dictum);  Carmalt  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871, 
ihid.  3157;  Rodocanochi  Sons  &  Co.  v.  U.  S.,  Act  of  June  23,  1874,  Distribution  of 
Geneva  Award,  ibid.  2359. 

In  the  Betsey  (U.  S.)  v.  Great  Britain,  Nov.  19,  1794,  Moore's  Arb.  2825,  2853  the 
general  rule  was  admitted,  but  the  purelj'  temporary  presence  of  the  owner  in  enemy 
territory  was  not  considered  a  commercial  or  enemy  domicil  so  as  to  affect  his  prop- 
erty at  sea  with  enemy  character.  To  the  effect  that  temporary  residence  is  not 
domicil  see  Beales  (U.  S.)  v.  Mexico,  Act  of  March  3,  1849,  ibid.  2670  (dictum). 

*  Raborg  (U.  S.)  v.  Peru,  Jan.  12,  1863,  Moore's  Arb.  1614  (dictum);  Upham, 
American  commissioner,  in  the  Laurent  case,  relied  upon  Kent's  statement,  ibid 
2678.    See  also  Finn  (U.  S.)  v.  Venezuela,  Dec.  5,  1885.  ibid.  2348-2349  (dictum). 


562  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

there,  he  is  by  the  law  of  nations  to  be  considered  a  merchant  of  that 
country,  and  a  subject  to  all  civil  purposes,"  ^  and  deprived  the  claim- 
ant of  his  standing  as  an  American  citizen  for  the  enforcement  of  a 
contract  with  the  government  of  Peru  by  reason  of  his  commercial 
establishment  in  Peru. 

The  rule  was  similarly  extended  beyond  its  ordinary  application 
to  the  belligerent  capture  of  propert}^  at  sea  in  the  cases  of  Laurent 
and  of  Uhde  (Great  Britain  v.  U.  S.)  before  the  mixed  commission 
under  the  convention  of  February  8,  1853.^  Both  these  claimants, 
British  subjects  by  birth,  had  established  a  commercial  domicil  in 
Mexico  and  had  remained  in  Mexico  after  the  outbreak  of  the  war 
between  the  United  States  and  Mexico  in  1846.  The  claim  of  the 
Laurents  was  based  upon  the  seizure  by  General  Scott  of  certain  moneys 
which  the  Laurents  had  placed  in  a  bank  to  the  credit  of  the  Mexican 
government,  said  money  having  been  the  purchase  price  of  certain 
church  property  which  the  Mexican  government  had  confiscated  and  con- 
tracted to  sell  to  the  claimants.  The  claim  of  Messrs.  Uhde  was 
based  upon  an  alleged  wrongful  seizure  by  the  United  States  author- 
ities at  Matamoras,  a  port  then  held  by  the  LTnited  States  forces,  of 
certain  merchandise  alleged  to  have  been  introduced  by  a  fraudulent 
evasion  of  the  customs  regulations.  In  both  cases,  the  question  was 
raised  as  to  the  right  of  the  claimants  to  appear  before  the  commis- 
sion as  British  subjects.  Bates,  the  umpire  of  the  commission,  rely- 
ing upon  certain  decisions  of  English  courts  to  the  effect  that  commer- 
cial domicil  in  time  of  war  impresses  the  national  character  of  the 
domicil  upon  property  at  sea  connected  with  the  place  of  domicil, 
held  that  the  claimants,  by  reason  of  their  commercial  domicil  in 
Mexico,  could  not  be  considered  "British  subjects"  within  the  meaning 
of  the  convention,  and  that  the  commission  was  without  jurisdiction.^ 

'  See  Abdy's  Kent,  2d  ed.,  1878,  p.  195.  Kent  here  had  reference  solely  to  commer- 
cial domicil  in  enemy  territory  in  prize  law. 

2  Laurent  (Gt.  Brit.)  v.  U.  S.,  Feb.  8,  1853,  Moore's  Arb.  2671-2691,  S.  Ex.  Doc. 
103,  34th  Cong.,  1st  sess.,  120-160;  Uhde  (Gt.  Brit.)  v.  U.  S.,  ibid.  2691-2695, 
S.  Ex.  Doc.  103,  34th  Cong.,  1st  sess.,  436  et  seq. 

^  Moore's  Arb.  2689,  2695.  Upham,  the  American  commissioner,  wrote  a  long 
opinion  (2677-2683)  also  denying  the  jurisdiction  of  the  commission  on  the  ground 
of  lack  of  citizenship. 


EFFECT   OF   DOMICIL   BEFORE    INTERNATIONAL   TRIBUNALS  563 

In  the  Uhde  case,  however,  jurisdiction  was  assumed  on  the  ground 
that  the  United  States  in  its  diplomatic  correspondence  with  Great 
Britain  had  entertained  the  claim. 

Mr.  Bates  was  not  a  lawyer,  and  it  is  believed  that  he  misconceived 
the  doctrine  of  trade  domicil  in  war  by  applying  it  to  the  situation 
of  the  claimants  Laurent  and  Uhde.  Mere  commercial  domicil  in 
Mexico  should  not  have  been  considered  as  involving  a  loss  of  British 
nationality.  The  conclusion  in  both  cases  was  probably  correct,  but 
for  entirely  different  reasons  than  the  ones  advanced.  It  was  not 
the  domicil  of  the  claimants  in  Mexico  which  affected  their  national 
character  as  British  subjects,  but  it  was  the  transactions  in  which 
they  were  engaged  which  in  the  one  case  did,  and  in  the  other  cUd  not, 
deprive  them  of  the  right  to  British  protection.  By  purchasing  pro})- 
erty  from  Mexico  and  depositing  money  in  trust  for  the  Mexican 
government,  the  Messrs.  Laurent  had  rendered  assistance  to  one 
of  the  belligerents,  and  as  against  the  United  States,  had  forfeited 
their  neutrality  as  British  subjects  and  their  right  to  British  protec- 
tion. By  introducing  cargo  into  a  port  in  the  possession  of  the  United 
States  the  Messrs.  L^hde  did  not,  as  against  the  United  States,  forfeit 
their  right  to  British  protection,  whatever  might  have  been  the  con- 
sequences as  against  Mexico.^  On  these  grounds,  which  appeal  to 
the  lawj^er  as  more  logical  and  reasonable  than  the  principle  of  commer- 
cial belligerent  domicil,  the  Laurent  and  the  L^hde  decisions  may  be 
reconciled. 

Trade  domicil  in  war,  therefore,  it  is  submitted,  does  not  deprive 
a  citizen  of  his  nationality,  nor  confer  upon  him  the  nationalit}'  of 
his  domicil.  For  the  particular  purpose  of  belligerent  capture  of  prop- 
erty at  sea,  it  serves  to  impute  the  national  character  of  the  domicil 
upon  so  much  of  a  merchant's  property  as  is  connected  with  his  com- 
mercial domicil,  and  to  this  limited  extent  only,  suspends  the  rights 
growing  out  of  his  actual  political  allegiance. 

The  effect  of  the  domicil  of  a  neutral  alien  in  enemy  territory  uj^on 
his  rights  of  person  and  property  has  also  led  to  erroneous  conclusions 
as  to  the  effect  of  domicil  upon  national  character.    In  our  discussion 

'  See  the  valuable  criticisms  of  the  Laurent  and  Uhde  decisions  in  the  doctrinal 
notes  on  these  cases  in  Lapradelle  and  Politis'  Recueil,  I,  675,  680. 


564  THE    DIPLOMATIC   PROTECTION   OF    CITIZENS   ABROAD 

of  war  claims,  it  was  observed  that  neutral  aliens  and  even  citizens 
domiciled  in  an  enemy  state,  with  their  property  there  situated,  are 
exposed  to  the  risks  of  war  and  the  consequences  of  hostilities  to  the 
same  extent  as  subjects  of  the  enemy. ^  A  citizen  of  a  neutral  nation, 
residing  in  a  countrj'^  between  which  and  another  war  breaks  out  may 
exempt  himself  from  the  liabilities  incident  to  hostile  character  by 
taking  early  steps  to  remove  from  the  belligerent  territory.^  By  con- 
tinuing his  residence  in  the  belligerent  territory  he  may  be  considered 
to  owe  at  least  temporary  allegiance  and  to  have  elected  to  adhere 
to  the  sovereign  of  his  domicil  of  choice,  and  to  have  placed  himself 
out  of  the  protection  of  the  government  to  which  his  original  and 
permanent  allegiance  is  due.^  His  person  and  property  may  be  treated 
by  the  other  belligerent  as  the  person  and  property  of  an  enemy.* 
While  such  domicil  in  belhgerent  territory  involves  a  temporary 
allegiance  and  imposes  upon  the  individual  the  rights  and  liabilities, 
for  belligerent  purposes,  of  a  national  of  the  country  in  which  he  is 
domiciled,  he  does  not  thereby  become  a  citizen  of  that  country,  nor 
lose  his  citizenship  in  his  home  state,  although  he  is  deemed  by  his 
continued  domicil  in  the  belhgerent  territory,  to  have  impliedly  re- 
nounced his  right  to  the  diplomatic  protection  of  his  home  govern- 
ment for  all  purposes  connected  with  his  belligerent  domicil.  The 
right  of  continued  residence  of  aliens  is  often  provided  for  in  treaties, 

*  Supra,  p.  251,  notes  1,  2  and  p.  252,  note  1.  See  also  U.  S.  v.  Farragut,  22  Wall. 
406;  The  Wm.  Bagaley  v.  U.  S.,  5  Wall.  377;  Prize  cases,  2  Black,  635;  Page  v.  U.  S., 
11  Wall.  268;  Green  v.  U.  S.,  10  Ct.  CI.  466  (exception  in  case  of  Abandoned  or 
Captured  Property  Act);  Haycraft  v.  U.  S.,  22  Wall.  81;  Lamar  v.  Browne,  92  U. 
S.  187;  Young  v.  U.  S.,  97  U.  S.  39;  Jaragua  Iron  Co.  v.  U.  S.,  212  U.  S.  297,  306; 
Peter  N.  PaiUet  v.  U.  S.,  Ct.  CI.  Rep.  220,  36th  Cong.,  1st  sess.,  19-20. 

2  The  Wm.  Bagaley  v.  U.  S.,  5  Wall.  377;  Gates  v.  Goodloe,  101  U.  S.  612;  Clow 
(U.  S.)  V.  Mexico,  Domestic  commission,  Act  of  March  3,  1849,  Moore's  Arb.  2657. 

'  Clow  (U.  S.)  V.  Mexico,  Act  of  March  3,  1849,  Moore's  Arb.  2657,  2658;  Cooke 
(U.  S.)  V.  Mexico,  ibid.  2659,  2660;  Haggerty  et  al.  (U.  S.)  v.  Mexico,  ibid.  2663; 
Thompson  (U.  S.)  v.  Mexico,  ibid.  2667. 

*  Cooke  (U.  S.)  V.  Mexico,  Act  of  March  3,  1849,  ibid.  2659,  2661;  Haggerty  et  al. 
(U.  S.)  V.  Mexico,  ibid.  2665;  Thompson  (U.  S.)  v.  Mexico,  ibid.  2669;  Barclay  (Gt. 
Brit.)  V.  U.  S.,  May  8,  1871,  ibid.  2727  {dictum);  Laurent  (Gt.  Brit.)  v.  U.  S.,  Feb.  8, 
1853,  ibid.  2671  and  Uhde  (Gt.  Brit.)  v.  U.  S.,  ibid.  2691  (see  also  supra,  p.  563, 
note  2).  Prats  (Mexico)  v.  U.  S.,  July  4,  1868,  iUd.  2886,  2890  (dictum).  See  also 
supra,  p.  252,  note  1. 


EFFECT   OF   DECLARATION   OF    INTENTION   TO    BECOME   A   CITIZEN      565 

and  their  subjection  to  war  risks  by  reason  of  continued  domicil 
should  not  be  extended  beyond  its  ordinary  application  to  belligerent 
acts. 

In  some  countries,  the  fact  of  being  domiciled  for  a  certain  period 
confers  the  rights  of  citizenship,  if  not  citizenship  itself.^  This  rule 
might  with  advantage  be  generally  adopted  by  states  which  entertain 
habitually  large  numbers  of  permanently  domiciled  foreigners.  It 
would  furnish  something  in  the  nature  of  a  solution  for  the  problem 
which  confronts  the  national  government  of  such  foreigners  who, 
although  permanently  absent  and  fulfilling  none  of  the  duties  of  citizen- 
ship, nevertheless  demand  diplomatic  protection  when  they  get  into 
difficulties. 

EFFECT   OF   DECLARATION   OF   INTENTION   TO    BECOME    A    CITIZEN 

§  247.  International  Effects. 

Under  the  naturalization  laws  of  the  United  States,  an  afien  who 
desires  to  become  a  citizen  of  the  United  States  must,  at  least  two 
years  prior  to  his  admission  to  citizenship,  declare  on  oath  before 
the  clerk  of  an  authorized  court  that  it  is  his  intention  to  become  a 
citizen  of  the  United  States  and  to  renounce  forever  all  other  allegiance. - 
The  few  exceptions  to  the  requirement  of  a  declaration  of  intention 
as  a  condition  of  admission  to  citizenship  are  not  important.^ 

1  Cockbum,  Nationality,  203,  204. 

2  Formerly  §  2165,  R.  S.,  now  §  4,  paragraph  1  of  Act  of  June  29,  1906,  34  Stat. 
L.  596. 

^  In  case  of  honorably  discharged  soldiers,  §  2166  R.  S.  Honorable  discharge  from 
Navy  after  five  years'  service,  Act  of  July  26,  1894,  28  Stat.  L.  124.  Honorable 
discharge  after  four  years'  service  in  Navy,  Marine  Corps,  Revenue-Cutter  Service, 
etc..  Act  of  June  30,  1914,  Session  laws,  63rd  Cong.,  2nd  sess.,  pt.  I,  395.  Widow 
and  children  of  declarant  who  dies  before  final  naturaHzation,  Act  of  June  29,  1906, 
§  4,  Parag.  6.  In  Hawaii  only  five  years'  residence  is  required.  Act  of  April  30,  1900, 
31  Stat.  L.  161.  By  §  30  of  the  Act  of  June  29,  1906  inhabitants  of  the  Philippines 
or  other  insular  possessions  need  not  renounce  foreign  allegiance.  By  the  Act  of 
June  25,  1910  (36  Stat.  L.  830),  a  person  who  has  resided  in  the  U.  S.  for  five  j'ears 
next  preceding  May  1,  1910  and  acted  under  the  impression  that  he  was  a  citizen 
and  exercised  the  rights  of  citizenship  may  receive  a  certificate  of  naturalization, 
without  making  a  declaration  of  intention.  In  re  Urdang,  212  Fed.  557.  The 
"minor's  clause"  (§  2167,  R.  S.)  was  repealed  by  the  Act  of  June  29,  1906.  See  Van 
Dyne,  Naturalization,  61-64. 


566  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

The  utility  and  desirability  of  the  declaration  of  intention  have 
often  been  questioned,  and  because  of  its  apparent  uselessness  and 
of  the  difficulties  which  it  engenders  its  elimination  from  our  naturaliza- 
tion laws  has  more  than  once  been  recommended.'  Its  purpose  was 
once  explained  by  Secretary  Blaine  as  providing  "a  probationary 
period  during  which  the  applicant,  by  residence  in  the  land  of  his 
adoption,  by  acquiring  interests  therein,  by  good  moral  conduct, 
and  by  familiarizing  himself  with,  and  attaching  himself  to,  its  consti- 
tutional methods,  shall  fit  himself  for  a  faithful  and  loyal  assumption 
of  the  duties  of  citizenship  and  thus,  as  a  member  of  our  free  society, 
support  the  government  whose  protection  is  in  return  extended  to  him."  ^ 

The  anomalous  position  in  which  the  person  who  has  thus  acquired 
what  might  be  termed  ''inchoate  citizenship"  is  placed,  has  caused 
many  diplomatic  controversies  between  the  United  States  and  other 
governments  and  has  served  at  times  to  deprive  the  person  concerned 
of  the  protection  of  both  his  old  and  his  new  government. 

While  the  declaration  of  intention  serves  to  confer  upon  an  alien 
various  rights  in  the  states  of  this  country,^  occasionally  denominated 
as  state  citizenship,  it  has  been  held  uniformly  by  our  courts  and  by 
the  executive  department  of  the  government  that  the  declaration 
is  merely  an  expression  of  intention  or  purpose,  and  has  not  the  effect 
either  of  naturaUzation  or  citizenship  in  the  United  States  ^  or  of  ex- 
patriation from  the  country  to  which  the  applicant  owes  original  alle- 

^  E.  g.,  Report  of  Naturalization  Commission,  1905,  p.  12. 

2  Mr.  Blaine  to  Mr.  Hicks,  May  8,  1890,  For.  Rel.,  1890,  695. 

'  In  twelve  states  it  gives  the  alien  the  right  to  vote,  provided  he  has  resided  in 
the  state  for  a  certain  period.  In  several  states  he  enjoys  greater  rights  than  other 
aliens  in  the  acquisition  of  real  property,  and  in  some  states  he  may  be  employed 
on  public  works  and  other  aliens  may  not.  He  also  enjoys  privileges  under  the 
preemption  and  homestead  laws.  Van  Dyne,  Naturalization,  (>4;  H.  Doc.  32G,  59th 
Cong.,  2nd  sess.,  20;  Nathan  Wolfman  in  41  Amer.  L.  Rev.  (1907),  504. 

^  Lanz  V.  Randall,  4  Dill.  425;  In  re  Moses,  S3  Fed.  995;  Minneapolis  r.  Ileum, 
56  Fed.  576,  6  C.  C.  A.  31;  Frick  v.  Lewis,  195  Fed.  093,  697;  U.  S.  v.  Uhl,  211  Fed. 
628,  631,  and  cases  cited  in  41  Amer.  L.  Rev.  505  and  Dicey,  Conflict  of  laws  (.\m(?i 
ed.),  202.  See  also  Johnson  v.  U.  S.,  160  U.  S.  546;  Yerke  v.  U.  S.,  173  U.  S.  439. 
See  instructions  of  Secretaries  Buchanan,  Fish,  Frelinghuysen,  and  Bayard  in 
Moore's  Dig.  Ill,  337-340.  See  also  Sec'y  Olney  to  Mr.  Denby,  Jan.  13,  1897,  For. 
Rel.,  1896,  92;  Sec'y  Hay  to  Mr.  McKinaey,  March  20,  1899,  MS.  Dom.  Let.  544- 
546. 


ANOMALOUS    POSITION   OF   DECLARANT  567 

giance.^  This  principle  has  been  confirmed  by  naturalization  treaties 
concluded  by  the  United  States  with  foreign  countries  ^  and  by  the 
decisions  of  arbitral  tribunals.'"^ 

§  248.  Anomalous  Position  of  Declarant. 

While  the  principle  is,  therefore,  clear  that  a  declaration  of  intention 
does  not  confer  citizenship,  the  position  of  such  an  aUen  declarant 
when  abroad  is  not  free  from  doubt.  Legally,  he  has  not  abjured  his 
original  allegiance,  and  he  remains  a  national  of  the  country  of  his 
origin  until  his  naturalization  has  been  completed.  This  has  been 
reiterated,  as  has  been  observed,  by  various  secretaries  of  State  and  is 
made  clear  by  numerous  treaties."*     Nevertheless,  having  clearly  ex- 

'  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Conger,  Feb.  15,  1902,  For.  Rel.,  1902,  221; 
Mr.  Cass,  Sec'y  of  State,  to  Mr.  Washburne,  March  9,  1857,  Moore's  Dig.  Ill,  338; 
Mr.  Frelinghuysen  to  Mr.  Dunne,  July  31,  1883,  ibid.  339;  Mr.  Bayard  to  Mr.  West, 
Oct.  17,  1885,  ibid.  341;  Mr.  Blaine  to  Mr.  Hicks,  Feb.  26,  1890,  ibid.  341. 

Adlam  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2552,  Hale's  Rep.  14; 
Tousig's  case,  Cockburn,  123.  Citation  of  opinion  by  Lieber  in  Wilson  (U.  S.)  v. 
Chile,  Aug.  7,  1892,  Moore's  Arb.  2555.  The  argument  of  the  American  commis- 
sioners in  the  case  of  Santangelo  (U.  S.)  v.  Mexico,  April  11,  1839,  ibid.  25.50,  to 
the  effect  that  the  declaration  of  intention  constituted  a  renunciation  of  orginal 
allegiance  is  clearlj'  wrong. 

In  the  case  of  France,  however,  the  declaration  of  intention  was  held  in  one  case 
to  serve  as  evidence  of  an  intent  not  to  return  to  France,  which  constituted  a  pre- 
sumption of  expatriation  under  the  French  Civil  Code.  Bouillotte  (France)  v.  U.  S., 
Jan.  15,  1880,  Moore's  Arb.  2652.  But  to  the  effect  that  the  French  code  contem- 
plates the  acquisition  of  a  new  citizenship  before  French  citizenship  can  be  lost, 
see  M.  Flourens,  French  minister  of  foreign  affairs,  as  reported  by  Mr.  McLane, 
June  25,  1887,  For.  Rel.,  1887.  See  also  as  to  French  law  before  1889,  circular  printed 
in  Moore's  Arb.  2653-2654. 

2  The  particular  provision  generally  reads:  "The  declaration  of  intention  to  be- 
come a  citizen  .  .  .  has  not  for  either  party  the  effect  of  naturalization."  It  is 
included,  in  substance,  in  the  treaties  with  Bavaria,  Baden,  North  German  Confed- 
eration, Wiirtemberg,  Hesse,  Austria-Hungary,  Sweden  and  Norvvay,  Haiti,  Hon- 
duras, Brazil,  Costa  Rica  and  Nicaragua.  It  was  also  included  in  the  treaties  with 
Ecuador  and  Mexico,  now  abrogated. 

'Santangelo  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  2549;  Beales  (U.  S.) 
V.  Mexico,  Act  of  Congress,  March  3,  1849,  ibid.  2670;  Ehlers  (U.  S.)  v.  Mexico, 
March  3,  1849,  ibid.  2551;  Ryder  (U.  S.)  v.  China,  Nov.  8,  1858,  ibid.  2332;  Elliott 
(U.  S.)  V.  Mexico,  July  4,  1868,  ibid.  2481  {dictum);  Gros  (U.  S.)  v.  Mexico,  ibid. 
2772;  Perez  (U.  S.)  v.  Mexico,  ibid.  2718  {dictum);  Adlam  (Gt.  Brit.)  v.  U.  S.,  May  8, 
1871,  ibid.  2553,  Hale's  Rep.,  14;  Wilson  (U.  S.)  v.  Chile,  Aug.  7, 1892,  ibid.  2553,  2557. 

*  Supra,  p.  566,  and  note  2,  Supra. 


568  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

pressed  his  intention  to  sever  the  tie  which  binds  him  to  his  country, 
it  is  a  question  whether  he  is  entitled,  when  abroad,  to  the  protection 
of  that  country.  The  United  States,  on  one  or  two  occasions  sought — 
without  success,  it  would  seem — to  resist  the  right  of  Italy  to  protect 
certain  Italian  subjects,  the  victims  of  mob  violence,  who  had  declared 
their  intention  of  becoming  citizens  of  the  United  States.^  Germany 
withdrew  its  protection  from  a  German  in  Nicaragua,  who,  it  was 
found,  had  declared  his  intention  of  becoming  a  citizen  of  the  United 
States.^  Before  the  French-American  mixed  commission  under  the 
convention  of  January  15,  1880,  the  declaration  of  intention  was  held 
to  be  prima  facie  proof  of  the  absence  of  an  intent  to  return  ("sans 
esprit  de  retour")  to  France,  and  under  the  French  code,  a  presumption 
of  expatriation.^  Cockburn  is  emphatically  of  the  opinion  that  a 
person  who  has  declared  his  intention  has,  during  the  probationary 
period  preceding  his  final  naturalization,  no  claim  to  the  protection 
of  his  home  government.^ 

§  249.  Protection  of  "  Declarants." 

In  the  matter  of  protection  abroad,  the  United  States  appears  from 
a  comparatively  early  period  to  have  recognized  that  a  declarant  who 
manifests  a  bona  fide  intention  to  complete  his  naturalization  and 
reside  in  the  United  States  is  in  a  somewhat  different  position,  at 
least  in  a  third  country,  than  an  ordinary  alien. ^    A  limited  protection 

'  See  quotations  from  diplomatic  correspondence  in  certain  mob  violence  cases, 
printed  in  For.  Rel.,  1895  and  1896,  and  reprinted  in  Moore's  Dig.  Ill,  344-353. 

2  Claim  of  George  A.  K.  Morris  v.  Nicaragua,  Mr.  Jas.  P.  Porter,  Act'g  Sec'y  to 
Messrs.  Kennedy  and  Shellaberger,  Jan.  4,  1887,  and  previous  correspondence  in 
Sen.  Doc.  287,  57th  Cong.,  1st  sess.,  10-22.  See  also  Moore's  Dig.  VI,  633-634.  As 
Mr.  Morris  had  not  yet  become  an  American  citizen,  U.  S.  protection  was  also  de- 
nied him. 

3  Bouillotte  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2652.  See  statement 
in  Ryder  (U.  S.)  v.  China,  Nov.  8,  1858,  ibid.  2333,  that  when  claimant  first  sued 
as  British  subject,  his  claim  was  rejected  on  the  ground  of  his  assumed  American 
character. 

*  Cockburn,  Nationality,  202.  See  also  J.  Hubley  Ashton's  argument  before  U.  S.- 
Mexican commission  of  1868,  Moore's  Arb.  2701. 

^  See  also  infra,  p.  569.  Attention  has  already  been  called  (supra,  p.  476)  to  the 
privileged  position  of  seamen  on  American  vessels  who  have  declared  their  intention. 
After  three  years'  service,  following  the  declaration,  they  may  be  admitted  to  citizen- 


PROTECTION  OF  "  DECLARANTS"  569 

has  in  some  instances  been  extended  to  such  persons,  and  as  has  al- 
ready been  observed,^  passports  were  issued  to  them  for  a  short  time 
during  the  Civil  War,  and  are  now  issued,  under  the  authority  of  the 
Act  of  March  2,  1907,  to  those  who  have  declared  their  intention  and 
have  resided  in  the  United  States  for  three  years.  They  are  issued 
only  under  special  circumstances,"  are  valid  for  six  months  only  and 
in  their  issuance  the  Department  of  State  has  adhered  to  its  uniform 
rule  that  a  person  who  has  declared  his  intention  will  not  be  protected 
in  his  native  country.^  In  China  ■*  and  Mohammedan  and  semibar- 
barous  countries,^  the  declaration  of  intention,  it  has  been  suggested 
by  one  or  two  secretaries  of  State,  may  sustain  an  appeal  to  the  good 
offices  of  the  diplomatic  representative  of  the  United  States. 

The  limited  protection  which  is  thus  extended  in  third  countries 
to  those  who,  under  certain  circumstances,  have  declared  their  inten- 
tion to  become  citizens  of  the  United  States  is  based  upon  the  realiza- 
tion of  their  awkward  position  in  being  practically  unable  to  look 
for  protection  to  the  government  of  which  they  are  still  nationals, 
by  reason  of  their  declared  intention  to  renounce  allegiance  to  it,  and 
in  not  yet  having  acquired  the  complete  right  to  American  protection.® 
It  has  always  been  sought  to  guard  against  imposition  on  the  United 
States.  On  numerous  occasions  the  departure  from  the  United  States 
of  a  person  who  had  declared  his  intention,  followed  by  an  extended 
residence  or  domicil  abroad  has  been  construed  as  an  abandonment 

ship;  and  immediately  after  filing  the  declaration,  they  are  deemed  American  citizens 
for  purposes  of  protection.    R.  S.,  §  2174. 

1  Supra,  p.  501. 

2  Rules  of  the  Dept.  of  State  governing  issuance  of  passports  to  "declarants," 
Nov.  14,  1913.    The  subject  is  discussed  at  greater  length,  supra,  p.  501. 

3  Mr.  Olney,  Sec'y  of  State,  to  Mr.  Breckenridge,  Jan.  27,  1896,  Moore's  Dig.  Ill, 
343  and  other  instructions  there  cited.  The  rule  is  confirmed  by  the  naturalization 
treaties  cited  sripra,  p.  567.    See  also  Wharton,  II,  §  175. 

*  Mr.  Olney,  Sec'y  of  State,  to  Mr.  Denby,  Jan.  13,  1897,  For.  Rel.,  1896,  92.  But 
not,  said  Mr.  Olney,  if  the  person  was  a  citizen  of  a  country  with  which  the  U.  S. 
had  a  naturalization  treaty,  thus  excluding  such  action. 

5  Mr.  Cass,  Sec'y  of  State,  to  Mr.  de  Leon,  Aug.  18,  1858,  Wharton,  II,  §  175, 
p.  359. 

*  See  the  discussion  of  the  Citizenship  Board,  H.  Doc.  326,  59th  Cong.,  2nd  sees., 
21.  The  board's  recommendation  as  to  declarant's  passports  was  carried  out  m 
section  one  of  the  Act  of  March  2,  1907. 


570  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

of  his  intention  to  become  a  citizen.^  As  a  condition  precedent  to 
the  issuance  of  the  declarant's  passport  as  authorized  by  the  Act  of 
1907,  it  must  be  shown  by  the  apphcant,  among  other  things,  that 
a  special  and  imperative  exigency  requires  his  temporary  absence 
and  that  there  has  been  no  neglect  in  his  failure  to  complete  his  natu- 
ralization.- During  the  present  European  War,  the  issuance  of  "de- 
clarants' passports"  to  natives  of  the  belligerent  countries  has  been 
completely  suspended,  and  they  are  issued  to  natives  of  other  countries 
with  reluctance  only. 

DOMICIL   PLUS  DECLARATION   OF  INTENTION 

§  250.  Koszta's  Case. 

Reference  has  been  made  ^  to  the  confusion  engendered  by  the  ar- 
guments of  Secretary  of  State  Marcy  in  sustaining  the  right  of  the 
United  States  to  protect  Martin  Koszta,  in  so  far  as  they  relate  to 
the  effect  of  domicil  and  a  declaration  of  intention  upon  the  right 
to  American  protection.''  The  reasoning  and  the  dicta  of  Mr.  Marcy 
subsequently  led  other  secretaries  of  State  to  assert  rather  wide  claims 
of  American  protection  based  upon  domicil  and  declaration  of  intention, 
but  Mr.  Marcy's  statements  must  be  understood  as  applying  only 
to  the  case  of  Koszta  then  under  discussion,  and  it  may  be  added 
that  the  Department  of  State  has  in  recent  years  confined  Mr.  Marcy's 

'  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Fay,  March  22,  1856,  Moore's  Dig.  Ill,  3.37; 
Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Hicks,  May  8,  1890,  For.  Rel.,  1890,  G95;  Mr.  Hay, 
Sec'y  of  State,  to  Mr.  Conger,  Feb.  15,  1902,  For.  Rel.,  1902,  222.  See  citations  to 
instructions  of  Secretaries  Marcy  and  Bayard  in  Wilson  (U.  S.)  v.  Chile,  Aug.  7, 
1892,  Moore's  Arb.  2555.  See  also  Perez  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2718; 
Kern  (U.  S.)  v.  Mexico,  ibid.  2719  and  cases  cited,  p.  2720. 

"^  See  the  rules  issued  November  14,  1913,  in  which  other  special  conditions  which 
must  be  fulfilled,  are  set  forth. 

^  Supra,  p.  .556. 

■*  Th(;  case  is  fully  presented,  with  the  notes  printed  at  length,  in  Moore's  Dig.  Ill, 
§  490;  S.  Ex.  Doc.  1,  33rd  Cong.,  1st  sess.;  44  St.  Pap.  961  cl  seq.  See  also  Wharton, 
11,  §§  175,  198;  Cockburn,  118-122;  Lawrence's  Wheaton  (2nd  ed.  1863),  176,  229; 
Hall,  5th  ed.,  242;  Morse,  op.  cit.,  6,  70;  Moore,  American  diplomacy  (New  York, 
1905),  194-199;  Wolfman  in  41  Amer.  Law  Rev.  509.  We  shall  confine  our  statement 
of  the  Koszta  case  to  the  facts  which  relate  to  the  questions  of  citizenship  and  pro- 
tection. 


DOMICIL    PLUS    DECLARATION"   OF   INTENTION  571 

somewhat  extreme  position  to  the  pecuUar  circumstances  under  whirh 
it  originated. 

In  brief,  the  facts  were  that  Koszta,  a  Hungarian  by  Ijirth,  fled 
Austria  after  the  rebellion  of  1848  and  escaped  to  Turkej'.  Turkey- 
having  declined  Austria's  demand  for  his  extradition,  he  was  released 
by  Turkey  on  the  understanding  that  he  would  leave  Turkey-  and 
not  return.  This  appears  to  have  been  ^vith  Austria's  consent.  Com- 
ing to  the  United  States,  he  made  a  declaration  of  intention  to  become 
a  citizen,  and  after  a  residence  of  somewhat  less  than  two  years,  re- 
turned to  Turkey  on  alleged  private  business.  He  placed  himself 
under  the  protection  of  the  American  consul  at  Smyrna,  and  received 
a  tezkereh,  or  local  protection  paper.  While  at  Smyrna,  awaiting  an 
opportunity  to  return  to  the  United  States,  he  was  arrested  under 
violent  circumstances  by  Austrian  authorities  claiming  to  have  the 
r'ght  to  arrest  him  under  the  capitulations  between  Austria  and  Turkey. 
The  arrest  was  made  without  the  authority  and  over  the  refusal  of 
permission  of  the  Turkish  governor.  Koszta  was  taken  on  board  an 
Austrian  war-vessel  and  confined  in  irons.  The  demand  of  the  Amer- 
ican consul  and  charge  for  his  release  having  been  refused,  an  Amer- 
ican war-vessel  in  the  harbor  threatened  to  sink  the  Austrian  ship 
unless  Koszta  was  at  once  delivered  up.  As  a  compromise,  Koszta 
was  turned  over  to  the  French  consul  until  the  matter  could  be  settled 
by  the  two  governments  concerned,  and  in  the  end  Koszta  was  sent 
to  the  United  States,  Austria  reserving  the  right  to  proceed  against 
him  should  he  return  to  Turkey. 

Secretary  Marcy's  argument  in  support  of  the  right  of  the  United 
States  to  protect  Koszta  ^  was  based  upon  several  grounds,  the  most 
important  of  which  were:  (1)  that  the  seizure  of  Koszta  having  taken 
place  within  the  jurisdiction  of  a  third  power,  the  respective  rights 
of  Austria  and  the  United  States  were  to  be  determined,  not  by  the 
municipal  law  of  either  country,  but  by  international  law;  (2)  that 
although  Austria  claimed  him  as  its  subject  he  had  been  practically 
banished  when  he  left  Turkey,  bj^  agreement,  with  Austria's  consent, 

^  The  argument  is  set  out  in  full  in  Mr.  Marcy  to  Mr.  Hiilsemann,  Sept.  26,  1853, 
H.  Ex.  Doc.  1  and  S.  Ex.  Doc.  1,  33rd  Cong.,  Ist  sess.  See  also  Moore's  Dig.  Ill, 
824-834. 


572  THE    DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

and  that  he  was,  even  by  Austrian  law,  no  longer  an  Austrian  subject; 
(3)  that  Austria's  seizure  could  not  be  justified  under  her  treaties 
with  Turkey  or  international  law,  Turkey  having  expressly  refused 
permission  to  make  the  arrest;  (4)  that  among  the  special  grounds 
which  sustained  the  right  of  the  United  States,  under  international 
law,  to  protect  Koszta  were:  (a),  the  fact,  that  although  not  a  citizen 
under  the  municipal  laws  of  the  United  States,  he  had  by  virtue  of 
his  domicil  and  declaration  of  intention  to  become  a  citizen,  acquired, 
in  international  law,  a  national  character  as  American;  and  (b),  even 
if  this  were  not  so,  he  had,  by  placing  himself  under  the  extraterri- 
torial protection  of  the  American  consul  at  Smyrna,  become  invested 
with  the  nationality  of  the  United  States. 

§  251.  Erroneous  Interpretations. 

Mr.  Marcy's  contentions  in  the  Koszta  case  led  to  various  errone- 
ous interpretations  and  constructions  and  misconceptions  of  law, 
some  of  which,  even  up  to  recent  years,  have  resulted  in  some  confu- 
sion of  thought.  It  was,  for  example,  assumed  that  a  declaration 
of  intention  may  be  considered  as  conferring  an  American  character 
and  a  right  to  diplomatic  protection  in  a  third  country.  Mr.  Marcy's 
own  firm  denial  of  any  such  construction  of  his  statements  has  not 
altogether  served  to  cause  its  abandonment.  In  fact,  it  will  be  recalled 
that  the  Act  of  March  2,  1907,  confers  a  right  to  issue  a  limited  passport, 
under  certaiii  special  circumstances,  to  declarants.'  Apart  from  this 
special  case,  a  mere  declarant  has  no  claim  of  right  to  American  pro- 
tection,^ and  in  recent  years  when  an  attempt  has  been  made  to  found 
a  claim  to  American  protection  in  a  third  country  upon  a  declaration 
of  intention,  the  Department  has  replied: 

''The  somewhat  extreme  position  taken  by  Mr.  Marey  in  the  Koszta 
case,  that  the  declarant  is  followed  during  sojourn  in  a  third  country 
by  the  protection  of  this  Government,^  has  since  been  necessarily  re- 

'  Supra,  p.  501.  In  every  other  case,  the  passport  is  as  firmly  refused  to  a  de- 
clarant as  it  is  to  any  other  alien. 

*  The  extension  of  good  offices  has  on  one  or  two  occasions  been  authorized  in 
countries  in  which  the  U.  S.  exercises  extraterritoriality.    Supra,  p.  569. 

'  This  is  not  an  accurate  statement  of  Mr.  Marcy's  position,  for  he  considered  the 
declaration  of  intention  and  domicil  together,  and  regarded  the  former  as  evidence 
of  the  latter. 


ERRONEOUS  INTERPRETATIONS  573 

garded  as  applying  particularly  to  the  peculiar  circumstances  in  which 
it  originated,  and  to  relate  to  the  protection  of  such  a  declarant  in  a 
third  country  against  arbitrary  seizure  by  the  Government  of  the 
country  of  his  origin."  ^ 

Again,  it  was  for  some  time  supposed  that  Secretary  Marcy  con- 
sidered a  domiciled  aUen  entitled  abroad  to  the  protection  accorded 
a  citizen,  on  the  ground  that  when  resident  in  the  United  States  such 
domiciled  alien  owed  temporary  allegiance  to  and  was  entitled  to 
local  protection  by  the  United  States.  While  this  erroneous  belief 
Avas  short-lived,  traces  of  it  may  be  discovered  in  positions  assumed 
by  the  Department  of  State  at  various  times  attributing  some  vague 
title  to  special  protection  abroad  to  the  fact  of  domicil  in  the  United 
States,  especially  when  accompanied  by  a  declaration  of  intention. 
President  Cleveland,  in  1885,  even  made  a  recommendation  to  Congress 
that  the  rights  of  such  persons  should  be  defined  by  statute.^  Based 
upon  an  opinion  by  Dr.  Wharton,  Solicitor  for  the  Department  of 
State,  to  the  effect  that  certain  civil  rights  attaching  to  domicil  are 
entitled  to  international  recognition.  Secretary  Bayard  in  1885  in- 
structed the  diplomatic  officers  of  the  United  States  that  persons 
domiciled  in  the  United  States,  although  not  naturalized,  are  entitled 
"to  maintain  internationally  their  status  of  domicil,  and  to  claim  pro- 
tection from  this  government,  in  the  maintenance  of  such  status."  ^ 
For  several  j^ears  thereafter  instructions  were  issued  in  several  cases 
extending  a  vague  degree  of  protection  to  persons  domiciled  in  the 
United  States,  who,  having  declared  their  intention  to  become  citizens, 
were  temporarily  abroad.'^  Fortunately,  this  peculiar  confusion  be- 
tween domicil  and  nationality  was  of  comparatively  short  duration, 
and  Secretary  Bayard  himself  became  convinced  that  his  instruction 
afforded  no  satisfactory  rule  of  action.^  In  the  revision  of  the  instruc- 
tions to  diplomatic  officers  in  1897  the  reference  to  domicil  was  omitted. 
Finally,    there   is   evidence   that   Secretary  Marcy   himself   regarded 

'  Mr.  Olney,  Sec'y  of  State,  to  Mr.  Denby,  Jan.  15,  1897,  For.  Rel.,  1896,  92-93. 
Reaffirmed  by  Mr.  Hay,  Sec'y  of  State,  to  Mr.  McKinney,  March  20,  1899,  MS. 
Dom.  Let.  544-546. 

*  Congress  took  no  action  upon  the  recommendation.    Moore's  Dig.  Ill,  846. 
^  Prinied  personal  instructions  to  diplomatic  agents,  §  118. 

*  Burnato's  .and  King's  cases,  Moore's  Dig.  Ill,  847-850. 

'  See  Baron  Seilliere's  case  in  France,  For.  Rel.,  1887,  .303  et  seq. 


574  THE   DIPLOMATIC   PROTECTION    OF   CITIZENS    ABROAD 

his  expressions  as  to  the  effect  of  domicil  and  declaration  of  intention 
upon  national  character  as  dicta,  inasmuch  as  his  position  in  the  Koszta 
case  rested  principally  upon  the  fact  that  Koszta  had  placed  himself 
under  the  protection  of  an  American  consul  in  Turkey,  according  to 
the  recognized  usage  in  that  country.^  International  law  sanctions 
the  right  of  protection  thus  acquired,  and  to  this  extent,  the  position 
of  Mr.  Marcy  has  had  general  approval.^  Much  doubt,  then,  may  be 
said  to  exist  as  to  whether  the  protection  extended  in  Koszta's  case 
in  Turkey  would  have  been  extended  in  any  third  country,  as  has 
sometimes  been  asserted.  Moreover,  it  seems  certain,  according  to 
Secretary  Marcy's  own  instructions  in  D'Oench's  and  in  Tousig's 
case,^  that  such  protection  would  not  have  been  extended  had  Koszta 
voluntarily  returned  to  Austria  and  placed  himself  within  the  juris- 
diction of  its  municipal  laws.  This  is  simply  in  line  ^vith  the  general 
rule  that  even  American  naturalization  will  not  protect  a  citizen  on 
return  to  his  native  land  from  penalties  incurred  there  prior  to  his 
emigration. 

§  262.  Decisions  of  United  States-Mexican  Commission  of  1868. 

We  may  not  leave  this  subject  without  referring  to  certain  decisions 
of  the  United  States-Mexican  commission  of  1868,  in  which  proof 
of  domicil  in  the  United  States  plus  a  declaration  of  intention  at  the 
time  of  the  origin  of  the  claim  was  held  a  sufficient  title  to  admission 
to  standing  before  the  commission  as  a  "citizen"  of  the  United  States, 
provided  that  subsequently  to  the  origin  of  the  claim,  the  claimant 
has  completed  his  naturalization.'* 

1  Sec'y  Marcy  to  Mr.  Marsh,  Aug.  26, 1853,  Moore's  Dig.  Ill,  835-836;  Lawrence's 
Wheaton  (2nd  ed.,  1863),  230. 

2  Lawrence's  Wheaton  (2nd  ed.,  1863),  230;  Morse,  op.  cit.,  6,  70,  244;  Calvo, 
cited  by  Morse,  70;  Woolsey,  cited  by  Hall  (5th  ed.),  243;  Webster,  op.  cit.,  143. 
See  Westlake's  view,  I  (1904  ed.),  201.  Mr.  Marcy's  position  has  also  been  de- 
fended on  the  ground  that  Turkey's  evident  inability  to  protect  Koszta  against 
Austria's  violent  and  unlawful  aggression  warranted  the  United  States  in  intervening. 

»  Moore's  Dig.  Ill,  838.  See  also  Marcy's  note  to  Baron  de  Kalb,  July  20,  1855. 
ibid.  841,  and  Mr.  Davis'  instruction,  May  12,  1869,  ibid.  843.  See  also  54  St.  Pap. 
467  and  Cockburn,  op.  cit.,  123-124. 

*  Jarr  and  Hurst  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2707,  where  claim- 
ants were  domiciled  in  U.  S.,  h;id  declared  their  intention,  had  shipped  as  seamen 


DUAL   NATIONALITY  575 

When  Sir  Edward  Thornton  became  umpire  of  the  commission  he 
decUned  to  follow  the  peculiar  rule  of  these  decisions,  but  acted  upon 
the  principle  that  neither  a  declaration  of  intention  nor  domicil,  singly 
or  together,  could  confer  citizenship.^  This  principle  was  adopted 
by  other  commissions.^ 

DUAL  NATIONALITY 

§  263.  Manner  in  which  it  Arises. 

By  the  municipal  law  of  the  United  States  all  persons  bom  in  this 
country  of  alien  parents  are  citizens  of  the  United  States.  This  govern- 
ment also  recognizes,  as  well  as  adopts,  on  its  own  part,  the  rule  that 
children  bom  abroad  of  citizens  are  themselves  citizens  of  the  country 
to  which  the  parents  owe  allegiance.  There  arises,  therefore,  by  reason 
of  the  concurrent  operation  of  the  jus  soli  and  the  jus  sanguinis,  a 
conflict  of  citizenship,  spoken  of  usually  as  dual  allegiance.  Inasmuch 
as  each  state  may  determine  for  itself  the  methods  for  acquiring  and 

on  an  American  vessel,  and  after  the  injury,  had  completed  naturaUzation.  The 
decision  was  largely  influenced,  it  is  believed,  by  J.  Hubley  Ashton's  ingenious  argu- 
ment, ibid.  2708.  The  decision  may  be  considered  dictum,  as  the  claim  was  dis- 
missed as  having  been  previously  settled.  Palacio,  commissioner,  held  that  the 
claim  to  protection  "should  be  essentially  attached  to  [claimant's]  real  and  actual 
presence"  in  the  U.  S.  In  Gosch  (U.  S.)  v.  Mexico,  ibid.  2715,  Umpire  Lieber  reluc- 
tantly held,  following  the  Jarr  and  Hurst  cases,  that  a  son  whose  father  made  a 
declaration  of  intention  when  the  son  was  sixteen,  but  had  completed  naturalization 
only  after  the  son's  majoritj',  the  son  having  lived  in  Mexico  before  he  became  of 
age  and  up  to  the  date  of  the  injury  out  of  which  the  claim  arose,  was  entitled  to  an 
award  as  a  "citizen  of  the  U.  S."  This  must  be  considered  another  poor  decision 
of  Dr.  Lieber,  for  he  failed  apparently  to  understand  the  limitations  set  by  Palacio 
upon  the  Jarr  decision.  See  also  Sprotto,  Assignee  of  Helhnan,  v.  Mexico,  ibid. 
2715,  2717,  and  Eigendorff  v.  Mexico,  ibid.  2717.  In  Schreck  v.  Mexico,  the  claim 
was  dismissed  as  claimant  had  apparently  not  established  his  domicil  in  the  U.  S. 
when  the  claim  arose,  ibid.  2720.  When  the  naturalization  was  not  shown  to  have 
been  completed,  however,  the  claim  was  dismissed  for  lack  of  citizenship.  Perez  v. 
Mexico,  ibid.  2718;  Kern  v.  Mexico,  ibid.  2719  and  cases  cited,  2720. 

1  Milatovitch  (U.  S.)  v.  Mexico,  No.  395,  MS.  Op.  IV,  .350-351;  Wilkinson  (U.  S.) 
V.  Mexico,  July  4,  1868,  Moore's  Arb.  2720;  Gros  v.  Mexico,  ibid.  2771,  2772;  Zama- 
cona,  Palacio's  successor  as  Mexican  commissioner,  seems  to  have  acted  on  the  same 
principle,  ibid.  2720. 

2  Beales  (U.  S.)  v.  Mexico,  Domestic  commission,  Act  of  IMarch  3,  1849,  Moore's 
Arb.  2669;  Rojas  (U.  S.)  v.  Spain,  Feb.  12,  1871,  ibid.  2337;  Wilson  (U.  S.)  v.  Chile, 
Aug.  7, 1892,  ibid.  2553.  See  also  as  to  nugatory  effect  on  citizenship  of  a  mere  decla- 
ration of  intention,  supra,  p.  566. 


576  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

conserving  its  nationality,  and  as  most  states  have  adopted  some 
form  of  the  jus  soli  as  well  as  some  form  of  the  jus  sanguinis,  these 
conflicts  of  citizenship  at  birth  are  frequent,  although  they  are  some- 
what tempered  by  the  fact  that  most  countries  admit  that  the  child 
endowed  with  dual  nationality  must,  upon  reaching  majority,  make 
an  election  of  citizenship. 

Dual  allegiance  is  sometimes  considered  to  exist  when  a  person 
born  in  one  countrj^  becomes  naturalized  in  a  foreign  country  before 
the  bond  of  original  nationality  has  been  broken.  So  far  as  the  United 
States  is  concerned,  to  regard  a  duly  naturahzed  American  citizen 
as  subject  to  a  dual  allegiance  would  imply  a  denial  of  the  doctrine 
of  voluntary  expatriation,  as  maintained  by  the  United  States.  It 
has  already  been  observed,^  however,  that  practically  all  the  countries 
of  Europe  (except  so  far  as  they  have  limited  their  right  by  naturaliza- 
tion treaties)  assert  the  right  to  determine  whether  and  upon  what 
conditions  they  will  release  their  subjects  from  the  bond  of  allegiance;  ^ 
and  while  the  United  States  contends  that  a  duly  naturalized  citizen 
has  but  one  nationality,  it  is  often  unable  successfully  to  maintain 
its  position  in  the  countrj'-  of  origin  or  in  a  third  country.  Neverthe- 
less, it  remains  true  that  when  a  person  acquires  a  new  nationality 
before  his  old  one  has  been  validly  set  aside  and  is  so  recognized  by 
his  original  state,  conflicting  claims  to  his  allegiance  will  arise.  The 
new  German  law  of  nationality  of  1913  apparently  sanctions  such 
conflicts  by  providing  that  a  German  residing  in  a  foreign  country 
may  acquire  naturalization  therein  without  giving  up  his  German 
nationality  unless  the  laws  of  that  country  (as  is  the  case  in  the  United 
States)  require  the  renunciation  of  the  prior  allegiance.^    Such  a  con- 

^  Supra,  p.  534. 

2  The  countries  have  been  classified,  supra,  §  237  et  seq.  See  also  Fromageot,  H., 
De  la  double  nationalite,  Paris,  1892,  61  et  seq.,  and  Samana,  N.,  Contributo  alio 
studio  della  doppia  cittadinanza  nei  riguardi  del  movimento  migratorio,  Firenze,  1910. 

»  Sec.  2.5,  parag.  2  of  the  law  of  July  22,  1913  (R.  G.  Bl.  583).  See  R.  W.  Flournoy, 
Jr.,  in  8  A.  J.  I.  L.  (July,  1914),  480  and  Th.  Meyer,  Reichs-  u.,  Staatsangehorig- 
keitsgesetz  vom  22  Juli,  1913,  Berlin,  1913,  p.  168.  While  residing  in  one  country, 
it  is  presumed  that  such  a  person  cannot  call  upon  the  other  for  protection.  The 
power  to  retain  German  nationality  applies  to  cases  in  which  the  German  secures 
foreign  nationality  either  against  his  will  or  for  specific  economic  reasons,  e.  g.,  to 
own  or  inherit  real  property,  etc. 


THE  JUS  SOLI  577 

flict  also  arises  between  countries  in  which  the  naturaHzation  of  the 
father  extends  to  his  wife  and  minor  children,  e.  g.,  Austria-Hungary, 
Switzerland,  Germany,  Norway,  Great  Britain  and  the  United  States 
and  countries  which  regard  naturalization  as  of  individual  effect  only, 
e.  g.,  Argentine,  Brazil,  Venezuela  (with  limitations),  Greece,  Russia, 
and  Portugal.  France  curiously  gives  a  collective  effect  to  naturaliza- 
tion in  France  and  an  individual  effect  only  to  naturalization  of  a 
Frenchman  abroad.^  Inasmuch  as  international  law  provides  no  rules 
governing  naturalization,  the  effect  of  naturalization  upon  previous 
citizenship  must  be  left,  it  would  seem,  to  the  municipal  law  of  the 
states  concerned.^ 

§  254.  The  Jus  Soli. 

The  system  of  the  jus  soli  has  some  variations.  In  its  most  absolute 
form  it  ascribes  citizenship  to  the  child  born  on  the  national  territory, 
whatever  the  nationality  of  the  parents.  This  principle  has  been 
adopted  by  the  United  States,  Argentine,  Venezuela,  Chile,  Bolivia, 
Brazil,  Peru,  Ecuador,  Uruguay,  Paraguay,  Haiti  and  San  Domingo.^ 
In  a  less  rigorous  form,  leaving  the  individual  free  at  his  majority  to 
elect  the  nationality  of  his  father.  Great  Britain,  Portugal  and  Mexico 
adhere  to  this  system.  Other  countries,  such  as  France,  Denmark, 
Holland,  Guatemala,  Costa  Rica  and  Ecuador  appear  to  regard  the 
individual  as  having  ceased  to  be  their  national  if  at  majority  he  was 
not  domiciled  in  the  territory.  Some  countries  limit  the  application 
of  the  jus  soli  to  the  children  of  domiciled  parents,  e.  g.,  Colombia 
and  the  Netherlands,  and  under  certain  limitations,  France  and  Italy. 
France  even  provided  in  the  law  of  1889  that  the  father  had  to  be  born 
in  the  territory.* 

'  Fromageot,  op.  oit.,  75-77;  For.  Rel.,  1910,  515.  France  has  concluded  with 
certain  states,  e.  g.,  Switzerland  and  Belgium,  treaties  conferring  on  minors  affected 
a  right  of  election  of  nationality  at  majority. 

-  See  Oppenheim,  I,  359. 

*  Citations  to  constitutional  and  statutory  provisions  in  Fromageot,  op.  oil.,  27, 
28  and  Lehr,  La  nationalite,  Paris,  1909.  As  to  Latin-America,  see  Harmodio  Arias, 
Nationality  and  naturalization  in  Latin-America  in  11  Journ.  of  the  Soc.  of  Comp. 
Leg.  (1910),  126-142. 

*  Fromageot,  op.  cit.,  30. 


578  THE   DIPLOMATIC   PROTECTION    OF    CITIZENS   ABROAD 

§  265.  The  Jus  Sanguinis. 

Practically  all  the  countries  of  Europe,  and  several  of  the  states 
of  Latin- America  have  adopted  the  system  of  the  jus  sanguinis.^  In 
some  states,  e.  g.,  Bolivia,  Chile,  Colombia  and  San  Domingo  the  appli- 
cation of  the  jus  sanguinis  to  the  foreign-born  children  of  nationals 
is  made  dependent  upon  the  return  of  the  child  to  the  mother  country; 
in  Portugal  and  Argentine  a  mere  election  of  citizenship,  and  in  Vene- 
zuela, of  domicil,  suffices.  In  Great  Britain,  the  foreign-born  child 
of  a  British  subject  may,  at  majority,  renounce  his  British  nationality, - 
whereas  in  the  United  States,  the  title  of  a  foreign-born  child  of  Amer- 
ican parents  to  American  citizenship  is  dependent  upon  the  prior  resi- 
dence of  the  father  in  the  United  States.^ 

§  256.  Methods  of  Avoiding  Conflicts. 

It  is  not  within  the  province  of  this  work  to  resolve  the  difficulties 
of  private  international  law  to  which  dual  allegiance  gives  rise  in  cases 
in  which  the  national  law  of  the  individual  is  to  be  applied.  It  may 
be  said  merely  that  either  the  lex  fori  or  the  law  of  the  domicil  is  often 
used  by  municipal  courts  as  a  criterion  in  choosing  between  conflict- 
ing nationalities.^  Nor  need  we  deal  with  the  theories  of  some  publi- 
cists, e.  g.,  Piittlingen,  Unger,  Bar  and  Laurent,^  who  deny  the  theoreti- 
cal possibility  of  plural  nationality  for,  however  logical  it  may  be, 
their  theory  is  effectively  refuted  by  the  facts  of  positive  law.    More- 

1  Fromageot,  op.  cit.,  51  et  seq. 

2  33  Vict.  c.  14,  §  4,  Declaration  of  alienage.  This  provision  is  retained  in  §  14 
of  the  recent  Nationality  and  Status  of  Aliens  Act,  4  and  5  Geo.  5,  ch.  17. 

3  R.  S.,  §  1993;  Van  Dyne,  Citizenship,  33,  34.  While  the  statute  merely  pro- 
vides that  "the  rights  of  citizenship  shall  not  descend  to  children  whose  fathers  never 
resided  in  the  United  States,"  it  would  seem  from  the  word  "descend"  that  the  resi- 
dence must  have  preceded  the  birth  of  the  child,  and  it  is  so  construed  by  the  Depart- 
ment of  State. 

^  See  Weiss,  A.,  Traite  .  .  .  de  droit  international  priv^,  2nd  ed.,  Paris,  1907, 
304  et  seq.;  Fromageot,  op.  cit.,  107-108.  See  also  Erno  Wittmann,  Conflits  dcs  lois 
concernant  la  nationalite,  in  23rd  Report  (1906)  of  the  International  Law  Asso., 
211-230;  Boeck  in  20  R.  G.  D.  I.  P.  (1913),  335-349  and  Rostworowski  in  Annales 
de  r^cole  des  sciences  politiques,  1898,  193. 

'  Fromageot,  op.  cit.,  16-17,  with  citations  to  the  works  of  these  writers.  See  als ) 
Morse,  Citizenship,  103-105  and  argument  of  Mr.  Morse  before  Spanish  Claims 
Commission  of  1871,  Moore's  Arb.  2612-2613;  Westlake,  Private  international  law, 
4th  ed.,  1905,  p.  356. 


METHODS   OF   AVOIDING   CONFLICTS  579 

over,  it  is  admitted  that  municipal  law  has  exclusive  territorial  but  no  ob- 
ligatory exterritorial  force,  so  that  states  with  conflicting  claims  to  the 
allegiance  of  a  particular  individual  are,  in  the  absence  of  treaty,  con- 
strained to  yield  to  the  municipal  law  of  the  state  having  actual  juris- 
diction of  the  person.  Great  Britain,  in  its  diplomatic  practice,  appears 
to  adhere  firmly  to  what  may  be  called  the  general  rule  that  no  state 
protects  its  nationals  residing  in  the  territory  of  another  state  which 
also  lays  claim  to  their  allegiance,  whether  by  jus  soli,  jus  sanguinis, 
or  naturalization.^  Within  certain  limitations,  Germany  -  and  the 
United  States  follow  this  practice.^  Several  countries,  either  as  to 
all  matters,  or  as  to  special  matters,  such  as  military  service,  have 
concluded  treaties  by  which  the  conflicts  of  their  national  law  are 
adjusted.'*  In  the  matter  of  naturalization,  some  countries  such  as 
Switzerland,  Luxemburg,  Norway  and  Sweden  avoid  conflicts  by 
requiring  proof  of  capacity  to  become  naturalized  according  to  the 

^  See  Drummond's  case,  2  Knapp  P.  C.  295;  Cockburn,  op.  cit.,  106;  Foote,  J., 
Foreign  and  domestic  law,  3rd  ed.,  London,  1904,  29;  For.  Rel.,  1907,  II,  921;  Fro- 
mageot,  op.  cit.,  83-84;  De  Lapradelle,  G.,  De  la  nationalite  d'origine,  Paris,  1893, 
349.    See  Wilson  v.  Marryat,  8  T.  R.  31,  45. 

It  has  been  observed  that  Great  Britain  by  statute  (Naturalization  Act,  1870,  §  7) 
declines  to  protect  its  naturalized  subject  against  his  state  of  origin,  when  the  latter 
still  claims  his  allegiance  {supra,  p.  543),  although  the  recent  British  XationaUty 
and  Status  of  Aliens  Act  appears  to  omit  such  a  provision.  Italy  does  not  apparently 
adhere  strictly  to  the  general  rule.  See  Vicini  claim  v.  Dominican  Repubhc,  1914; 
Arata  (Italy)  v.  Peru,  Nov.  25,  1899,  Descamps  &  Renault,  Rec.  int.  des  traites 
du  XX*  siecle,  1901,  p.  709;  and  the  correspondence  between  the  Venezuelan  gov- 
ernment and  the  Italian  Minister  at  Caracas,  1873,  set  out  in  Libro  Amarillo,  1907, 
p.  214. 

2  Koenig,  B.  W.,  Handbuch  des  deutschen  Konsular-wesen,  7th  ed.,  BerUn,  1910, 
pp.  56,  197.  For  practice  of  some  other  countries,  see  Cahn,  Staatsangehorigkeit, 
BerUn,  1908,  p.  32  a. 

^  Italy  does  not  appear  to  observe  the  general  rule  (e.  g.,  Vicini  claim  v.  Dominican 
Rep.  and  Canevaro  claim  v.  Peru,  infra,  p.  589);  in  one  noteworthy  case  the  U.  S. 
appears  to  have  made  an  exception  to  its  general  practice.  In  the  claim  of  Mrs. 
Groce  and  children  v.  Nicaragua,  the  U.  S.  demanded  a  heavy  indemnity  for  the 
killing  of  Mr.  Groce,  on  behalf  of  his  native  Nicaraguan  widow  and  children,  con- 
tinuously there  domiciled,  who  by  Nicaraguan  law  were  citizens  of  Nicaragua.  For. 
Rel.,  1909,  446. 

*  Thus  Spain  has  concluded  treaties  with  various  states  of  Latin- .\merica  reUn- 
quishing  her  claim  to  the  allegiance  of  natives  of  those  states  bom  of  Spanish  sub- 
jects. Fromageot,  op.  cit.,  97.  France  has  concluded  treaties  regulating  military 
service  with  Belgium  and  Spain.    Ibid.  100,  105;  Lapradelle,  op.  cit.,  31,  363-364. 


580  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

applicant's  national  law.  Other  countries,  among  which  the  United 
States  may  be  included,  have  by  naturalization  treaties  succeeded  to 
a  considerable  degree  in  adjusting  conflicting  claims  to  the  allegiance 
of  a  naturalized  citizen.^ 

As  already  noted,  dual  allegiance  may  arise  in  the  case  of  a  child 
born  in  the  United  States  of  alien  parents,  and  in  the  case  of  a  child 
born  abroad  of  American  parents.  The  concurrent  operation  of  the 
jus  sanguinis  and  the  jus  soli  upon  such  a  child,  as  is  often  the  ca&e, 
serves  to  impose  upon  him  dual  nationality.^ 

§  257.  Protection  Abroad  in  Cases  of  Dual  Nationality. 

According  to  the  Fourteenth  Amendment  to  the  Constitution  and 
under  §  1992  of  the  Revised  Statutes,  a  child  born  in  the  United  States 
of  alien  parents — whether  permanently  or  temporarily  here  resident, 
and  whether  themselves  capable  of  acquiring  citizenship  or  not — is 
a  citizen  of  the  United  States.^  The  question  arises  whether  such 
a  child  upon  his  departure  to  and  his  long-continued  residence  in  the 
country  of  his  parents,  which  b}^  its  law  considers  him  as  its  national 
jure  sanguinis,  may  properly  receive  the  protection  of  the  United 
States.  During  minority,  and  in  the  absence  of  any  conflicting  claim 
to  his  allegiance  or  service  by  the  country  of  his  residence,  the  United 
States  appears  to  have  taken  the  position  that  in  view  of  his  incom- 
petence to  elect  another  nationaUty,  he  must  be  considered  a  citizen 
of  the  United  States  and  as  such  entitled  to  the  issuance  of  a  passport.* 
The  case  is  quite  different,  however,  when  the  country  of  residence 
demands  some  service  from  the  individual  so  situated.  Thus,  it  has 
frequently  happened  that  children  born  in  the  United  States  of  alien 
parents  are  taken  at  an  early  age  to  the  latter's  country  of  native  al- 
legiance and  upon  reaching  the  military  age  are  called  to  military 

» Supra,  §  239. 

2  Van  Dyne,  Citizenship,  25  et  seq.;  Moore's  Dig.  Ill,  §§  426-430;  Whartov  ^T 
§§  183-180. 

^  See  cases  collected  in  report  of  Citizenship  Board,  H.  Doc.  326,  59th  Cong., 
2nd  sess.,  73-74,  and  especially  U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  649. 

*  GundUch's  case,  Mr.  Bacon,  Act'g  Sec'y  to  Mr.  Tower,  Amb.  to  Germany, 
March  8,  1907,  For.  Rel.,  1907,  516-517.  Unless,  however,  he  returns  to  the  United 
States  upon  reaching  majority,  or  shortly  thereafter,  he  is  considered  as  haying 
elected  foreign  nationality,  and  a  further  [)assport  is  declined. 


PROTECTION   ABROAD    IN    CASES   OF   DUAL   NATIONALITY  581 

duty.  The  United  States  recognizes  the  dual  nationaUty  of  such 
children  and  would  find  it  difficult  to  maintain  a  claim  for  their  exemp- 
tion from  military  service;  indeed,  the  Department  has  stated  that 
it  may  not  properly  be  called  upon  to  intervene  in  their  behalf  against 
the  country  in  which  they  reside.^  The  right  to  American  protection 
is  in  such  cases  considered  as  suspended  during  the  minority  and  foreign 
residence  of  the  child,  but  it  may  be  revived  upon  the  attainment 
of  the  child's  majority,  by  his  carrying  out  an  election  to  return  to 
the  United  States.    The  question  of  election  will  be  examined  presently. 

The  matter  of  protection  abroad  in  cases  of  dual  allegiance  de- 
pends very  largely  upon  the  law  of  the  foreign  country  in  which  the 
question  arises,  and  upon  the  naturalization  treaties  which  it  may 
have  concluded.  Thus,  in  the  case  of  countries  which  deny  either 
absolutely  or  conditionally  the  right  of  voluntary  expatriation,  the 
American-bom  child  of  a  native  of  such  country,  whether  the  father 
was  naturalized  or  not  in  the  United  States,  is  subject  upon  his  visit 
to  such  country  to  the  obhgations  which  native  allegiance  may  impose 
upon  him.  - 

In  countries  with  which  the  United  States  has  concluded  naturaliza- 
tion treaties,  conflicting  claims  to  the  allegiance  of  sons  of  naturalized 
citizens  have  occasionally  occurred.  By  the  laws  of  the  United  States 
the  minor  children  of  naturalized  citizens,  upon  taking  up  permanent 
residence  in  the  United  States,  become  citizens  thereof  by  virtue  of 
the  parent's  naturalization.^  The  question  has  arisen  whether  by  return 
of  the  father  to  the  native  country  for  a  sufficiently  long  time  to  in- 
volve a  renunciation  of  his  American  citizenship,  his  minor  children 
follow  his  status.  Notwithstanding  the  general  rule  that  an  infant 
child  partakes  of  the  nationality  of  his  father,  the  United  States  has 

'  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Lieberraann,  July  9,  1886,  Moore's  Dig.  Ill, 
542;  Liebmann's  case,  1885;  Blancafort's  case,  1885;  Steinkauler's  case,  15  Op.  Atty. 
Gen.  15.  The  ruling  of  the  Dept.  of  State  in  Pinto's  case,  in  which  the  American- 
born  son  of  Costa  Rican  parents,  taken  back  to  Costa  Rica  when  three  years  old,  was 
considered  apparently  as  an  American  citizen  only,  and  not  subject  to  dual  allegiance, 
is  exceptional.    The  misconception  is  discussed  by  Mr.  Moore  in  his  Digest,  III,  535. 

2  Gendrot's  case  in  France,  For.  Rel.,  1888,  I,  495-499;  1899,  269-271,  Moore's 
Dig.  Ill,  537-539;  Dubuc's  case  in  France,  For.  Rel..  1910.  514r-516;  Reinhard's 
jase  in  Switzerland,  1914. 

*  Act  of  March  2,  1907,  §  5,  34  Stat.  L.  1229. 


582  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

considered  that  the  father  is  legally  unable  to  deprive  the  child  of 
his  natural  allegiance  and  that  the  child's  title  to  American  protection 
is  merely  suspended  during  his  minority  and  residence  abroad  until, 
upon  reaching  majority,  he  made  a  definite  election  of  nationality.^ 

§  258.  Foreign-born  American  Citizens. 

According  to  §  1993  of  the  Revised  Statutes  "all  children  .  .  .  born 
out  of  the  limits  and  jurisdiction  of  the  United  States,  whose  fathers 
were  or  may  be  at  the  time  of  their  birth  citizens  thereof,  are  declared 
to  be  citizens  of  the  United  States;  but  the  rights  of  citizenship  shall 
not  descend  to  children  whose  fathers  never  resided  in  the  United 
States." 

When  such  foreign-born  children  of  American  citizens  are  born 
in  a  country  by  whose  laws  they  become  its  subjects  jure  soli,  a  case 
of  dual  nationality  also  arises.^  While  passports  may  be  and  are  fre- 
quently issued  to  such  foreign-bom  minors,^  their  efficacy  is  qualified 
l)y  the  fact,  unreservedly  admitted,  that  it  is  not  competent  for  the 
United  States  by  its  municipal  legislation  to  interfere  with  the  rights, 
obligations  and  duties  which  may  attach  to  them  under  the  laws  of 
the  country  in  which  they  were  born  and  in  which  they  continue  to 
reside.^    In  third  countries  no  such  limitation  would  apply. 

'  See  Pierrepont,  Atty.  Gen.,  in  Steinkauler's  case,  15  Op.  15  and  criticism  by 
Morse,  op.  cit.,  104;  Grimm's  case,  1882.  In  Great  Britain  a  more  logical  rule  is 
followed.  The  minor  child  follows  the  status  of  the  father,  and  with  him,  would  cease 
to  be  a  British  subject.  Within  a  year  after  attaining  his  majority,  he  may,  however, 
make  a  declaration  that  he  wishes  to  resume  British  nationality.  See  the  recent 
Nationality  and  Status  of  Aliens  Act,  §  12  (2). 

When  the  American-born  child  taken  abroad  at  an  early  age  returns  to  the  United 
States  during  minority  and  remains  here,  the  U.  S.  will  resist  any  claim  to  his  alle- 
giance by  the  country  of  his  father,  where  he  resided  during  a  part  of  his  minority. 
Boisselier's  case,  Moore's  Dig.  Ill,  544;  Revermann's  case,  ibid.  Ill,  536. 

2  Moore's  Dig.  Ill,  §§  426-427;  Wharton,  §  185;  Van  Dyne,  Citizenship,  34  cl  seq. 

'  There  is  no  uniform  practice  in  the  matter.  See,  however,  Mr.  Seward,  Act'g 
Sec'y  of  State,  to  Mr.  Foster,  July  2,  1879,  For.  Rel.,  1879,  815.  Such  minors  may 
also  be  registered  in  American  consulates.  Mr.  Rockhill  to  Mr.  Williams,  March  10, 
1896,  Van  Dyne,  43. 

*  Hoar,  Atty.  Gen.,  June  12,  18G9,  13  Op.  Atty.  Gen.  89,  91;  Mr.  Bayard,  Sec'y 
of  State,  to  Mr.  Vignaud,  July  2,  1886,  For.  Rel.,  1886,  303;  Report  of  Sec'y  Fish 
to  the  President,  Aug.  25,  1873,  For.  Rel.,  1873,  II,  1191;  Mr.  Olncy,  Sec'y  of  State, 
to  Mr.  Strobel,  June  4,  1896,  For.  Rel,  1896,  35,  Moore's  Dig.  Ill,  §  427;  Van  Dyne, 


FOREIGN-BORN  AMERICAN   CITIZENS  583 

The  question  is  frequently  presented  whether  the  foreign-bom 
minor  child  of  a  naturalized  citizen  is  entitled  to  American  protection. 
If  born  prior  to  the  naturalization  of  the  father  and  never  resident 
in  this  country,  the  child  of  course  never  became  a  citizen  of  this  coun- 
try. If  born  after  the  naturalization  of  the  father,  it  becomes  first 
necessary  to  determine  whether  the  father  had  expatriated  himself, 
at  the  time  of  the  child's  birth.  If  so,  the  child  is  born  an  alien,  and 
is  not  entitled  to  American  protection.^  As  already  observed,  if  the 
father  renounced  or  forfeited  his  American  citizenship  subsequent 
to  the  birth  of  the  child  and  acquired  a  new  nationality,  this  has  been 
held  to  operate  not  as  a  renunciation,  but  merely  as  a  suspension  of 
the  child's  right  to  American  protection  against  a  conflicting  claim  of 
the  country  of  residence,  notwithstanding  the  general  rule  that  the 
minor  child  follows  the  status  of  the  father.  A  passport  may  be  issued 
to  such  a  child  until  he  attains  majority,  and  becomes  competent  to 
elect  his  nationality.^  The  American  citizenship  of  such  a  minor  may, 
however,  be  divested  by  his  continued  residence  abroad  after  reaching 
the  age  of  majority.  So  that,  while  protected  as  a  minor,  he  must, 
in  order  to  conserve  his  American  citizenship  and  right  to  protection, 
manifest  his  election  to  assume  the  rights  and  duties  of  American 
citizenship,  for  upon  reaching  majority  his  citizenship  is  no  longer 
derivative,  but  is  a  matter  of  personal  election.  When,  therefore,  the 
foreign-bom  child  of  an  American  citizen  or  the  American-born  child 
of  foreign  parents  continues  to  reside  abroad  after  reaching  the  age  of 
majority,  his  right  to  American  protection  depends  upon  his  having 

op.  cit.,  35;  Cons.  Reg.,  1896,  §  138.  The  English  law  appears  to  be  the  same.  Appen- 
dix to  Report  of  NaturaUzation  Board  Commissioners,  1869,  60,  67;  Cockbum, 
Nationality,  108-110;  For.  Rel.,  1873,  II,  1326.  See  also  Lavigne,  No.  11,  and  Bister, 
No.  20  (U.  S.)  V.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2454. 

'  Sec'y  Fish  to  the  President,  Aug.  25,  1873,  For.  Rel.,  1873,  II,  1191.  See  two 
instructions  of  Sec'y  Frelinghuysen,  1883  and  1884  in  Moore's  Dig.  Ill,  528,  For. 
Rel.,  1885,  396;  Rosenheim's  case,  1896,  Sec'y  Olney  to  Mr.  Uhl,  For.  Rel.,  1896. 
215-220;  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Tower,  May  31,  1904,  For.  Rel.,  1904,  314 
vVilliams,  Atty.  Gen.,  in  14  Op.  295  (1873). 

2  Mr.  Adee,  Act'g  Sec'y  of  State,  to  Mr.  Combs,  Sept.  15,  1903,  For.  Rel.,  1903, 
595;  Same  to  Mr.  Beaupre,  Aug.  30,  1904,  For.  Rel.,  1904,  36.  See  also  Mr.  Seward 
to  Mr.  Foster,  Aug.  13,  1879,  For.  Rel.,  1879,  824,  and  Hine's  case.  For.  Rel.,  1901, 
421.  The  same  rule  would  apply  to  the  foreign-bom  sons  of  native  citizens,  who 
become  expatriated  after  the  birth  of  the  child.  For.  Rel.,  1893,  401-404. 


584  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   AUHOAD 

elected  American  citizenship  in  accordance  with  the  law  of  the  United 

States. 

§  259.  Right  of  Election. 

The  municipal  law  of  many  countries  gives  to  the  native-born  child 
of  foreign  parents,  affected  with  a  dual  nationality,  a  right  of  election 
of  nationality  upon  reaching  majority  or  within  a  reasonable  time 
thereafter.  Such,  for  example,  is  the  law  of  France,  Spain,  Belgium, 
Greece,  Italy,  Portugal,  Mexico,  Chile  and  Costa  Rica.^  This  princi- 
l)le,  which  is  generally  recognized  in  international  law  even  in  the 
absence  of  express  provision  of  municipal  law,  is  based  upon  the  fact 
that  when  a  person  becomes  sui  juris  he  cannot  logically  retain  two 
nationalities,  and  he  is  required  to  elect  between  them  in  order  that 
he  may  be  bound  exclusively  by  the  one  or  the  other.-  This  election 
may  be  manifested  in  various  ways.  In  some  countries,  e.  g.,  Portugal, 
Italy  and  France,  silence  operates  as  an  election  of  domestic  nationality; 
in  other  countries,  as  in  Spain,  it  is  construed  as  an  election  of  the 
foreign  nationality  of  the  parents.  While  there  is  no  express  provision 
in  the  law  of  the  United  States  giving  election  of  citizenship  to  the 
child  bom  here  of  alien  parents,  it  has  always  been  held  by  the  De- 
])artment  of  State  that  if  such  a  child  is  taken  during  minority  to  the 
country  of  his  parents,  he  must,  upon  arriving  at  majority  or  shortly 
thereafter,  make  his  election  between  the  citizenship  which  is  his 
by  birth  and  the  citizenship  M^hich  is  his  by  parentage.^  In  case  such 
a  person  should  elect  American  citizenship  he  must,  unless  in  extraor- 
dinary^ circumstances,  in  order  to  render  his  election  effective,  manifest 

'  Brazilian  Minister  to  Mr.  Blaine,  Sec'y  of  State,  and  Sec'y  Blaine  to  Brazilian 
Minister,  Dec.  2,  1890  (not  sent).  See  also  Van  Dyne,  op.  cit.,  25.  For  Chile,  see 
the  opinion  of  the  Court  of  Appeals  at  Santiago  printed  in  For.  Ilel.,  1907,  I,  124. 
For  Portugal,  see  For.  Rel.,  1910,  834.  See  Appendix  to  Rei)ort  of  Citizenship 
Board,  1906. 

*  See  the  cases  in  American  courts  collected  by  the  Citizenship  Board,  H.  Doc. 
32G,  59th  Cong.,  2nd  sess.,  74-76.  The  new  German  law  of  nationality  of  July  22, 
1913  makes  it  expressly  possible  for  an  adult  to  possess  two  nationalities,  supra,  p.  576. 
A  similar  possibility  is  maintained  by  the  Italian  law  of  June  13,  1912,  art.  7. 

^  De  Bourry's  case,  2  Wharton,  401;  Steinkauler's  case,  15  Op.  Atty.  Gen.  15; 
Surmann's  case,  Mr.  Olney,  Hec'y  of  State,  to  Mr.  Rcichenau,  Nov.  20,  1896,  For. 
Rel.,  1897,  182;  Van  Dyne,  24-31. 


RIGHT   OF    ELECTION  585 

and  carry  out  in  good  faith  an  intention  to  return  with  all  convenient 
speed  to  the  United  States  and  assume  the  duties  of  citizenship.' 

With  respect  to  the  foreign-born  child  of  American  citizens,  the 
United  States  has  adhered  to  the  generally  recognized  principle  of 
international  law  to  the  effect  that  the  child  upon  reaching  full  age 
must  elect  one  nationality,  and  repudiate  the  other,  his  election  being 
final.-  This  election  is  required  to  be  made  within  a  "reasonal)le 
time"  after  reaching  majority.^  On  different  occasions  this  govern- 
ment has  declined  to  extend  its  protection  to  persons  who  had  reached 
the  age  of  twenty-four,'*  and  twenty-six,''  and  had  failed  to  elect  United 
States  citizenship.  While  the  United  States  requires  the  foreign-born 
citizen  upon  majority  to  expressly  manifest  his  election  of  American 
citizenship,  the  foreign-born  child  of  Italian  parents,  a  citizen  of  the 
country  of  his  birth,  retains  his  Italian  nationality  unless  he  expressly 
renounces  it  on  attaining  majority.^ 

The  United  States  has  held  that  the  foreign-born  child  of  an  American 
citizen  was  not  competent  to  make  an  election  of  his  nationality  during 
minority,  and  that  his  right  to  claim  United  States  citizenship  upon 
reaching  majorit}'  could  not  be  taken  from  him."  It  was  this  view  of 
the  status  of  such  a  child,  it  seems,  which  led  to  the  enactment  of 
that  provision  of  the  Act  of  March  2,  1907,  which  requires  foreign- 
born  American  children  who  continue  to  reside  outside  the  United 
States,  in  order  to  receive  the  protection  of  this  government,  to  record 
at  an  American  Consulate  "upon  reaching  the  age  of  eighteen,"  their 

'  Sec'y  Bayard  in  For.  Rel.,  1886,  12  and  303  and  For.  Rel.,  1887,  1131;  For.  Rel., 
1888,  I,  489  and  510. 

-Wharton,  Conflict  of  laws,  §  10;  Ludlam  v.  Ludlain,  26  N.  Y.  356;  Mr.  Bayard,* 
Sec'y  of  State,  to  Mr.  Pendleton,  April  27,  1886,  For.  Rel.,  1886,  327;  Van  Dyne, 
op.  cit.,  38.  For  decisions  of  municipal  courts,  see  H.  Doc.  326,  59th  Cong.,  2nd 
eess.,  74  et  seq.,  79-80;  also  Count  Wall's  case,  3  Knapp  P.  C.  Rep.  13  and  Jephson  v. 
Riera,  ibid.  130. 

3  Sec'y  Bayard  in  For.  Rel.,  1886,  327;  Sec'y  Frelinghuysen  in  Klinp;cnineyer's 
case,  For.  Rel.,  1885,  398. 

*  For.  Rel.,  1886,  12;  ibid.  1887,  965-967. 

5  For.  Rel,  1903,  595. 

6  .\rt.  7  of  the  Italian  law  of  June  13,  1912,  Pari.  Pap.,  Cd.  6526,  Misc.  No.  1  (1913), 
p.  2. 

'  For.  Rel.,  1879,  815  and  825;  ibid.  1901,  421  (Hine's  case);  For.  Rel.,  1886,  317, 
327  and  V'an  Dyne,  47  (George's  case). 


686  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

intention  to  become  residents  and  remain  citizens  of  the  United  States 
and  "to  take  the  oath  of  allegiance  to  the  United  States  upon  attaining 
their  majority."  ^  This  provision  was  the  result  of  a  recommenda- 
tion of  the  Citizenship  Board,-  appointed  in  1906.  The  recommenda- 
tion, which  was  confined  to  male  children,  was  based  upon  the  ground 
that  inasmuch  as  such  children  at  eighteen  generally  become  liable 
to  military  service  in  foreign  countries,  the  United  States  might  be 
put  in  the  position  of  protecting  a  child  of  this  class  during  the  period 
of  liability  for  military  service,  only  to  have  him,  upon  attaining  his 
majority,  elect  foreign  nationality.  It  was  realized  that  even  the  regis- 
tration of  intention  would  not  entirely  prevent  such  occurrences, 
but  it  was  said  that  a  young  man  thus  violating  his  pledge  would  be 
"in  danger  of  forfeiting  not  only  his  good  name  but  the  further  protec- 
tion of  this  government."  ^  The  Department  of  State  first  construed 
the  statute  to  permit  of  the  registration  or  recording  of  intention  up 
to  arrival  at  the  age  of  nineteen.  Several  cases  occurred,  however, 
where  the  foreign-born  child  had  failed  to  record  his  intention  before 
reaching  nineteen,  and  in  some  cases  it  was  believed  that  American 
citizenship  had  thereby  been  forfeited.  In  view  of  the  admitted  in- 
capacity of  an  infant  to  make  any  election  in  regard  to  his  citizenship, 
and  in  view  of  the  practical  certainty  that  Congress  did  not  intend 
to  deprive  of  his  right  to  elect  American  citizenship  one  who  failed 
to  make  the  declaration  of  intention,  the  Department  on  March  14, 
1911  issued  a  circular  instruction  to  diplomatic  and  consular  officers 
stating  that  the  declarations  of  intention  "to  become  residents  and 
remain  citizens  of  the  United  States"  had  reference  to  the  right  of 
protection  rather  than  citizenship  under  municipal  law,  and  that 
"  such  declarations  may  be  made  at  any  time  after  the  minors  concerned 
have  reached  the  age  of  eighteen  years  and  before  they  take  the  oath 
of  allegiance  to  the  United  States."  ^    This  conclusion  was  reached  by 

1  Act  of  March  2,  1907,  §  6,  34  Stat.  L.  1229;  Cons.  Reg.,  parag.  138;  Circular  In- 
struction, Dept.  of  State,  April  19,  1907,  "Children  of  citizens  born  abroad,"  For. 
Rel.,  1907,  9. 

2  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  17. 
■■>  Ibid.  17. 

*  Ceneral  Instruction,  Consular,  No.  16,  March  14,  1911,  Declaration  of  foreign- 
born  children  required  by  section  6,  Act  of  March  2,  1907.  The  function  of  the 
declaration  has  been  practically  nulllQed  by  this  construction. 


DECISIONS   OF    INTERNATIONAL   TRIBUNALS   OF   AHBITUATION        587 

holding  that  the  term  "upon"  [reaching  the  age  of  eighteen]  signified 
"after,"  for  which  there  is  some  authority.  This  same  construction 
supports  the  ruhng  of  the  Department  that  the  oath  of  allegiance  may 
be  taken  within  a  reasonable  time  after  attaining  majority. 

The  election  of  American  citizenship,  it  has  been  generally  held, 
should  be  evidenced  by  coming  to  the  United  States  to  live,  upon 
reaching  majority  or  within  a  reasonable  time  thereafter.  Should 
the  foreign-born  child  come  to  the  United  States  a  considerable  time 
after  attaining  the  age  of  majority,  without  having  taken  the  oath 
of  allegiance,  he  would  come  as  an  alien.  ^  The  burden  of  proving 
an  election  of  American  citizenship  falls  upon  the  claimant  thereof. 
Foreign  nationality  may  be  elected  by  silence  or  a  mere  continuation 
of  residence  abroad.  Failure  within  a  reasonable  time  to  carry  out 
the  declaration  of  intention  to  reside  in  the  United  States  would  nul- 
lify the  effect  of  the  oath  of  allegiance  as  an  election  of  American  citi- 
zenship. 

There  are  one  or  two  interesting  cases  of  dual  nationality  which 
may  be  mentioned.  The  child  born  of  foreign  parents  on  the  high  seas 
on  an  American  vessel  is  probably  an  American  citizen  under  our 
law  ^  and  may  also  be  a  foreign  subject  jure  sanguinis.  Hence  he 
would  upon  attaining  majority  have  a  right  of  election. 

The  Institute  of  International  Law  at  its  Madrid  session  reached 
the  conclusion  that  the  nationality  of  an  aeronaut  follows  the  country 
in  which  he  has  been  matriculated,  but  that  state  cannot  protect  the 
airship  of  an  alien  in  his  national  state,  if  the  latter  forbids  its  nationals 
to  register  their  airships  abroad.^ 

§  260.  Decisions  of  International  Tribunals  of  Arbitration. 

International  arbitral  commissions  have  frequently  had  to  pass  upon 
questions  of  dual  allegiance.     Such  cases  have  usually  arisen  under 

•  Albany  v.  Derby  (1858),  30  Vermont,  718. 

2  Wheaton,  8th  ed.,  §  106;  Kent's  Commentaries,  I,  26;  Craps  v.  Kelly,  16  Wall. 
610;  McDonald  v.  Mallory,  77  N.  Y.  546;  Vattel,  §  216;  Nelson,  H.,  Private  inter- 
national law,  47,  citing  Marshall  v.  Murgatroyd  (1870),  L.  R.,  6  Q.  B.  31.  See  also 
dissenting  opinion  of  Story,  J.,  in  Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  99,  and  U.  S.  v. 
Gordon,  5  Blatch.  18.  There  is  an  express  provision  to  this  efifect  in  the  1914  British 
Nationality  and  Status  of  Aliens  Act,  §  1  (1,  c). 

» 24  Annuaire  (1911),  346,  314-327;  7  R.  D.  I.  priv6  (1911),  846. 


588  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

protocols  giving  the  commission  jurisdiction  of  claims  of  citizens  of 
one  country  against  the  other  country,  and  the  claimant  has  proved 
to  be  a  citizen  of  each  of  the  contracting  parties  according  to  the  munici- 
pal law  of  each. 

The  principle  generally  followed  has  been  that  a  person  having 
dual  nationality  cannot  make  one  of  the  countries  to  which  he  owes 
allegiance  a  defendant  before  an  international  tribunal.^  In  other 
words,  a  person  cannot  sue  his  own  government  in  an  international 
court,  nor  can  any  other  government  claim  on  his  behalf.  This  prin- 
ciple was  well  expressed  by  Frazer,  Commissioner  for  the  United  States, 
in  his  opinion  in  Alexander's  case:  ^ 

"The  practice  of  nations  in  such  cases  is  believed  to  be  for  their 
sovereign  to  leave  the  person  who  has  embarrassed  himself  by  assuming 
a  double  allegiance  to  the  protection  which  he  may  find  provided  for 
him  by  the  municipal  laws  of  that  other  sovereign  to  whom  he  thus  also 
owes  allegiance.  To  treat  his  grievances  against  that  other  sovereign 
as  subject  of  international  concern  would  be  to  claim  a  jurisdiction  para- 
mount to  that  of  the  other  nation  of  which  he  is  also  a  subject.  Com- 
plications would  inevitably  result,  for  no  government  would  recognize 
the  right  of  another  to  interfere  thus  in  behalf  of  one  whom  it  regarded 
as  a  subject  of  its  own."  » 

In  numerous  cases  international  tribunals  have  endeavored  to  re- 
solve the  conflict  of  nationalities  by  applying  various  criteria  to  de- 
termine which  of  the  two  nationalities  could  more  properly  be  attrib- 

1  Alexander  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2529;  Boyd  (Gt.  Brit.) 
V.  U.  S.,  ibid.  2465;  Martin  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2467;  Lebret  (France) 
V.  U.  S.,  Jan.  15,  1880,  ibid.  2488,  2492;  Maninat  (France)  v.  Venezuela,  Feb.  19, 

1902,  S.  Doc.  533,  59th  Cong.,  1st  sess.,  44,  74;  Brignone  (Italy)  v.  Venezuela,  Feb.  13, 

1903,  Ralston,  710,  718  (dictum).  See  also  Drummond's  case  (Gt.  Brit.)  v.  French 
Indemnity  Commissioners,  2  Knapp's  P.  C.  Rop.  295. 

In  Arata  (Italy)  v.  Peru,  Nov.  25,  1899,  Descamps  and  Renault,  Recueil  int.  des 
traites,  I,  709,  711,  Arbitrator  Uribarri  (Spain),  contrary  to  the  general  rule,  allowed 
a  claim  against  Peru  on  the  part  of  native  Peruvian  children  of  an  Italian  father, 
citizens  of  both  countries.  In  Halley  (Gt.  Brit.)  v.  U.  S.  and  Ferris  (Gt.  Brit.)  v. 
U.  S.,  May  8,  1871,  Moore's  Arb.  2239,  the  Commission  (Frazer  dissenting)  niade 
an  award  to  the  beneficiary  (who  possessed  dual  nationality)  of  an  intestate  who, 
however,  was  "exclusively  a  British  subject." 

2  Alexander  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2531. 

^  It  has  been  noted  (supra,  p.  460)  that  this  is  the  general  practice  of  the  United 
States  and  Great  Britain.  See  also  Cogordan,  La  Nationality,  Paris,  1890,  39,  and 
Tchemoff,  op.  cit.,  470. 


DECISIONS    OF   INTERNATIONAL    TRIBUNALS    OF   ARBITRATION        589 

uted  to  the  claimant,  it  being  admitted  that  without  some  proof 
or  presumption  of  personal  election  the  municipal  law  of  one  country 
could  not  be  given  superiority  over  the  other.  If,  as  a  result  of  the 
application  of  these  criteria,  it  appeared  that  the  claimant  had  elected 
the  citizenship  or  that  he  could  properly  be  regarded  as  a  citizen  of 
the  defendant  country,  the  claim  was  dismissed  for  lack  of  jurisdiction. 

The  criterion  most  frequently  applied  has  been  domicil.  In  re- 
solving the  conflict  of  nationality,  preference  has  been  given  to  the 
citizenship  of  the  country  in  which  the  claimant  had  established  or 
maintained  his  or  her  domicil.^  This  continuation  of  domicil  may 
be  considered  a  form  of  election  of  nationality. 

In  case  of  conflict  between  the  jus  soli,  where  claimant  has  con- 
tinued to  reside,  and  the  jus  sanguinis,  preference  has  almost  uniformly 
been  given  to  the  former,^  following  in  this  respect  the  diplomatic 
practice. 

» Lebret  (France)  t'.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2488,  2505,  Opinion  of 
Commissioner  Aldis;  Hammer  and  Brissot  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  ibid. 
2456-2461;  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  438,  445; 
Miliani  (Italy)  v.  Venezuela,  Feb.  13,  1903,  ibid.  754,  761;  Brignone  (Italy)  v.  Ven- 
ezuela, ibid.  710,  719;  Poggioli  (Italy)  v.  Venezuela,  ibid.  847,  806;  Maninat  (France) 
t'.  Venezuela,  Feb.  19,  1902,  Sen.  Doc.  533,  59th  Cong.,  1st  sess.,  44,  74;  Massiani 
(France)  v.  Venezuela,  ibid.  211,  224;  Canevaro  (Italy)  v.  Peru,  April  25,  1910,  6  A. 
J.  I.  L.  (1912),  746,  decided  by  Hague  Court  of  Arbitration,  May  3,  1912,  8  R.  D.  I, 
priv6  (1912),  331,  Boeck  in  20  R.  G.  D.  I.  P.  (1913),  317,  329,  and  Ernst  Zitelmann 
in  V.  3  (2nd  series)  of  Das  Werk  vom  Haag,  Miinchen,  1914,  pp.  169-247.  See  also 
Bluntschli,  §  374,  and  article  by  J.  Basdevant,  Les  conflits  de  nationalite  dans  les 
arbitrages  venezueliens,  5  R.  D.  I.  priv6,  1909,  41-63,  in  which  several  of  the  awards 
of  the  Caracas  commissions  of  1903  are  criticized. 

^Schreck  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2450  (dictum) ;  Lavigne 
and  Bister  (U.  S.)  v.  Spain,  Feb.  12,  1871,  2454;  Hammer  and  Brissot  (U.  S.)  v. 
Venezuela,  Dec.  5,  1885,  ibid.  2456;  Mathison  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903, 
Ralston,  429,  436,  438;  Stevenson,  ibid.  438,  454.  See  also  cases  of  Miliani,  Brignone 
and  Poggioli  (Italy)  v.  Venezuela,  cited  above,  and  of  Maninat  and  Massiani 
(France)  v.  Venezuela,  ibid.  The  decision  in  Chopin  (France)  v.  U.  S.,  Jan.  15,  1880, 
Moore's  Arb.  2506  appears  contrary  to  the  general  rule.  It  may  be  ex{)lained,  in 
part  at  least,  on  the  ground  that  Oscar  Chopin  (the  French  father  of  children  born 
in  the  U.  S.,  to  whom  an  award  was  made  as  French  citizens)  died  after  the  ratifica- 
tion of  the  treaty  cf  Jan.  15,  1880.  See  Boutwell's  Re{)ort,  88.  The  decision  is  not 
well  reasoned.  See  also  Arata  (Italj')  v.  Peru,  Nov.  25,  1899,  Descamps  &  Renault's 
Recueil,  I,  709,  711,  in  which,  contrary  to  the  general  rule,  the  jus  sanguinis  was 
given  preference. 


590  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

Apart  from  the  implied  recognition  of  ttie  right  of  election  involved 
in  the  application  of  the  test  of  domicil,  international  tribunals  have 
expressly  recognized  that  a  person  born  with  dual  nationality  has 
the  right,  upon  arrival  at  majority,  of  electing  the  nationality  to  which 
he  desires  to  adhere.  ^ 

§  261.  Measures  to  be  Adopted  to  Adjust  Conflicts  of  Nationality. 

The  legal  and  diplomatic  difficulties  engendered  by  the  status  known 
as  dual  allegiance  will  have  become  apparent  in  the  course  of  this 
brief  study. ^  Attempts  have  been  made  to  adjust  the  conflict  by  treaty,  ^ 
but  only  slight  success  has  been  achieved.  The  United  States  has 
not  entered  into  any  such  treaties,  leaving  aside  for  the  moment  the 
matter  of  naturalization  treaties.  At  the  time  when  the  naturalization 
treaty  of  1911  with  Costa  Rica  was  concluded,  the  following  paragraph 
was  proposed : 

"Children  of  a  father,  being  a  citizen  of  the  United  States,  born  in 
Costa  Rica,  shall  be  considered  as  citizens  of  Costa  Rica  during  their 
minority,  and  shall  preserve  the  same  nationality  after  reaching  the 
age  of  twenty-one  years,  unless  at  that  time  or  within  a  year  thereafter, 
they  make  known,  either  directly  or  through  the  diplomatic  or  consular 
agents  of  the  United  States  resident  in  Costa  Rica,  that  they  wish  to 
elect  the  nationality  of  their  father." 

This  principle  was  to  apply  mutatis  mutandis  to  citizens  of  Costa  Rica 
born  in  the  United  States.  Such  a  provision  is  contained  in  existing 
treaties  between  Great  Britain  and  Haiti,  Mexico  and  Italy,  and 
Spain  and  Salvador. 

It  is  much  to  be  desired  that  nations  agree,  by  legislation  or  treaty, 
as  they  have  in  so  many  other  matters  in  which  there  was  a  conflict 

'  Scott  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2528;  Julio  and  Gaston 
Rabel  (No.  140  and  No.  236),  U.  S.  v.  Spain,  Spanish  Treaty  Claims  Commission, 
Act  of  March  2,  1901  (American-born  child  of  foreign  parents  taken  abroad  at  early 
age  and  continuing  to  reside  abroad).  See  Oral  Argument  of  Asst.  Atty.  Jones, 
May  25,  1900,  v.  7  of  "Briefs."  Cancvaro  (Italy)  v.  Peru,  April  25,  1910,  Hague 
Court,  0  A.  J.  I.  L.  74G,  8  R.  D.  I.  prive  (1912),  331.  See  also  Doe  v.  Aeklam,  2  Bar. 
and  Cress.,  779  and  Auchmuty  v.  Mulcaster,  5  Bar.  and  Cress.  771. 

^  In  large  measure,  this  question  was  the  cause  of  the  War  of  1812  with  Great 
Britain,  inasmuch  as  Great  Britain  insisted  upon  the  impressment  of  seamen  from 
American  vessels  who  were  Americana  under  American  law  and  British  under  British 
law. 


ABSENCE    OF   NATIONALITY  591 

of  municipal  law,  to  adopt  a  common  rule  as  to  nationality  of  origin, 
and  to  regard  naturalization  in  a  second  country  as  having  the  effect 
of  superseding  the  allegiance  due  to  the  country  of  birth.  ^  A  reason- 
able rule  in  the  case  of  a  person  born  with  dual  nationality  would  be, 
as  suggested  in  connection  with  the  Costa  Rican  treaty,  that  such 
a  person  should  be  considered  a  citizen  of  the  country  in  which  he  was 
born  if  he  should  continue  to  reside  there  after  reaching  his  majority. 

§  262.  Absence  of  Nationality. 

Even  more  anomalous  than  the  position  of  the  person  possessing 
dual  nationality  is  that  of  the  person  without  any  nationality,  or 
Heimatlos  as  he  is  called  in  German.  Such  a  condition  occasionally 
arises  at  birth,  but  usually  arises  when  a  person  loses  or  forfeits  his 
original  nationality,  either  by  express  or  implied  expatriation,  and 
fails  to  acquire  a  new  nationality.  A  person  in  this  position  cannot 
call  upon  the  diplomatic  protection  of  any  state,^  and  it  is  said  that 
the  anomalous  situation  of  a  German  who  by  residence  abroad  for 
ten  years,  under  the  law  of  June  1,  1870,  lost  his  German  nationality, 
led  to  the  enactment  of  the  new  law  of  1913.^  The  United  States 
has  seemingly  lent  its  aid  to  the  perpetuation  of  this  unfortunate  system 
by  certain  provisions  of  the  Act  of  March  2,  1907.  For  example, 
the  presumption  of  expatriation  on  the  part  of  a  naturalized  citizen 
by  a  residence  of  two  years  in  his  native  state  or  five  years  in  any 
other  state,'*  may  well  leave  such  a  person  without  any  nationality. 

1  See  Cockburn,  op.  cil.,  186,  187.  The  countries  which  are  subject  to  heavy 
emigration  have  always  resisted  this  admission  of  the  right  of  voluntary  expatria- 
tion. This  is  probably  the  principal  reason  why  the  U.  S.  has  been  unable  to  con- 
clude naturalization  treaties  with  France,  Italy,  Switzerland,  Turkey  and  Russia. 

2  See  Anzilotti  in  13  R.  G.  D.  I.  P.  (1900),  12;  Corvaia  (Italy)  v.  Venezuela, 
Feb.  13,  1903,  Ralston,  782.  It  is  interesting  to  note  that  Congress  by  Joint  Resolu- 
tion of  July  19,  1912  (37  Stat.  L.  II,  134G),  unconditionally  admitted  to  American 
citizenship  one  Eugene  Prince,  who  was  born  in  Russia  of  an  American  father  who 
had  never  been  in  the  U.  S.,  and  hence  was  not  a  citizen  under  §  1993,  R.  S.,  and  who 
was  also  not  recognized  by  Russia  as  a  Russian  8ul)ject. 

^  See  Meyer,  Th.,  Reichs-  u.  Staatsangehorigkeitsgesetz  vom  22  Juli,  1913,  Berhn, 
1913,  Einleitung,  p.  3  el  seq.  See  also  the  introductions  to  the  two  leading  com- 
mentaries on  the  new  German  law:  Cahn,  W.,  Reichs-  u.  Staatsangehorigkeitsgesetz 
V.  22,  7,  1913,  erlautert,  4th  ed.,  Berlin,  1914,  and  Keller,  F.,  und  Trautinann,  P., 
Kommentar  zum  .  .  .  Gesetz  v.  22,  7,  1913,  Miinchen,  1914. 

*  Section  2  of  the  Act,  34  Stat.  L.  1228. 


592  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

Less  justifiable,  however,  is  the  provision  of  §  3  according  to  which 
"any  American  woman  who  marries  a  foreigner  shall  take  the  nation- 
ality of  her  husband,"  apparently  regardless  of  whether  his  national  law 
so  provides.  Not  only  may  this  provision  be  unenforceable,  but  it  may 
easily  result  in  depriving  a  woman  of  American  citizenship  without 
conferring  upon  her  any  other.  The  rule  stated  by  Field, ^  that  "a 
person  who  has  ceased  to  be  a  member  of  a  nation,  without  having 
acquired  another  national  character,  is  nevertheless  deemed  to  be 
a  member  of  the  nation  to  which  he  last  belonged,  except  so  far  as 
his  rights  and  duties  within  its  territory,  or  in  relation  to  such  nation, 
are  concerned"  can  hardly  be  considered  as  a  recognized  rule  of  in- 
ternational law. 

'  Field,  D.  D.,  Outlines  of  an  international  code,  2nd  ed.,  New  York,  1876,  130. 
See  also  Morse,  Citizenship,  160.  Art.  20  of  the  Introductory  Law  of  the  German 
Civil  Code  provides  that  in  the  case  of  persons  of  no  nationaUty,  the  law  of  the  last 
country  to  which  they  belonged  is  to  be  appUed,  when  their  national  law  governs  a 
case. 


CHAPTER  IV 

EFFECT  OF  VARIOUS  LEGAL  RELATIONSHIPS 

MARRIED    WOMEN   AND    WIDOWS 

§  263.  Effect  of  Marriage  on  Citizenship. 

The  effect  of  marriage  upon  the  political  status  of  women  is  of  great 
importance,  both  in  municipal  and  in  international  law.  It  will,  there- 
fore, be  desirable  to  consider  the  status  of  foreign-born  women  married 
to  American  citizens,  of  American-born  women  married  to  aliens, 
and  of  widows  of  both  these  classes. 

Under  the  municipal  law  of  the  United  States,  prior  to  the  Act  of 
Feb.  10,  1855,^  marriage  had  no  effect  upon  the  citizenship  of  a  woman, 
either  to  make  a  foreign-born  woman  American,-  or  an  American- 
born  woman  foreign.^  This  view  supported  the  common-law  doctrine 
as  to  expatriation,  which  prevailed  in  the  English  and  American  courts 
up  to  the  middle  of  the  nineteenth  century,  to  the  effect  that  no  person 
can  by  any  act  of  his  own,  without  the  consent  of  the  government, 
change  allegiance. 

The  civil  law,  on  the  other  hand,  had  always  held  stronglj'^  to  the 
unity  of  the  institution  of  the  family  and  the  supremacy  of  the  au- 
thority of  the  husband  and  father.  Continental  codes,  therefore, 
and  those  of  practically  all  civil  law   countries  have  from  the   be- 

1 10  Stat.  L.  604,  incorporated  in  almost  identical  language  in  R.  S.,  §  1994. 

2  Mick  V.  Mick  (1833),  10  Wend.  379;  Priest  v.  Cummings  (1837),  16  Wend.  617; 
Currin  v.  Finn  (1846),  3  Denio,  229.  See  also  Du  Bouchet  v.  Award  of  Commis- 
sioners, 2  Knapp  P.  C.  364.  Similarly,  the  husband's  naturaUzation  had  no  effect 
upon  the  aUen  wife's  citizenship,  whether  she  resided  in  the  U.  S.  or  not.  White  i\ 
White,  2  Met.  (Ky.),  185,  191;  Kelly  v.  Harrison,  2  Johns.  Cas.  29.  This  was  the 
rule  of  the  common  law.  Countess  de  Conway's  case,  2  Knapp,  364,  368.  See  also 
Lord  Campbell  in  Countess  de  Wall's  case,  12  Jurist,  348. 

» Beck  V.  McGillis,  9  Barb.  35;  Moore  v.  Tisdale,  5  B.  Mon.  352  cited  in  H.  Doc. 
326,  59th  Cong.,  2nd  sees.,  30,  145;  Shanks  v.  Dupont,  3  Pet.  242,  248.  Note  in  22  L. 
R.  A.  148. 

593 


594  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

ginning  provided  that  the  nationality  of  a  woman  follows  that  of  her 
husband.^ 

§  264.  Foreign-born  Wife  of  American  Citizen. 

In  1844,  a  British  law  ^  was  enacted  providing  that  an  alien  woman 
who  married  a  British  subject  became  naturalized  thereby.  The 
first  legislation  of  the  United  States  in  regard  to  the  political  status 
of  married  women  was  the  Act  of  1855,  above  mentioned,  which  was 
based  upon  the  British  statute.  That  Act,  as  incorporated  in  the 
Revised  Statutes,^  reads: 

"Any  woman  who  is  now,  or  may  hereafter  be,  married  to  a  citizen 

^  See  Cockbum's  approval  of  this  rule  of  the  civil  law,  op.  cil.,  211.  Alvorez  states 
(Droit  int.  americain,  Paris,  1910,  p.  313)  that  in  Latin-America,  this  is  the  rule  only 
in  Mexico,  Costa  Rica,  Haiti,  Peru  and  Guatemala.  This  statement  is  not  believed 
to  be  quite  accurate.  There  are  slight  variations  from  the  general  principle  in  a  few 
countries.  Thus,  it  is  sometimes  provided  that  the  acquisition  of  the  alien  husband's 
nationality  by  a  native  woman  is  dependent  upon  her  departure  from  national  terri- 
tory. Italian  C.  C,  art.  11,  §  3;  Honduras,  law  of  foreigners,  arts.  5,  6.  This  seems 
also  to  be  the  law  in  Ecuador  and  Guatemala.  The  consent  of  the  wife  to  the  change 
of  nationality  by  the  husband,  is  sometimes  required,  e.  g.,  Portugal,  C.  C,  art.  22, 
§  1;  and  British  Act  of  1914,  §  10,  in  next  note. 

In  some  countries,  a  native  woman  takes  her  alien  husband's  nationality  only 
if  by  hie  law  it  is  conferred  upon  her.  Mexico,  law  of  May  28,  1886,  art.  2,  §  4;  Bel- 
gium, law  of  June  8,  1909,  art.  11,  102  St. Pap.  182;  France,  art.  19,  C.  C,  as  amended 
by  law  of  June  26,  1889;  Italy,  C.  C,  art.  14;  Portugal,  C.  C.,  art.  22,  §  4;  Costa 
Rica,  law  of  Dec.  21,  1886,  art.  4,  §  5;  Venezuela,  art.  19,  C.  C. 

In  many  of  the  Latin-American  countries  marriage  to  an  alien  does  not  denation- 
alize a  native  woman.  This  is  the  law  in  Brazil,  and  from  the  fact  that  the  laws  of 
the  other  countries,  except  Mexico,  Costa  Rica,  Guatemala,  Honduras,  Haiti,  Peru, 
and  Venezuela  are  silent  upon  the  subject,  Octavio  Rodriguez  in  6  Rev.  de  I'lnstit. 
de  Dr.  Comp.  307  concludes  that  the  law  in  these  countries  is  the  same  as  the  Brazi- 
lian law.    The  same  rule  appears  to  govern  in  Spain. 

2  7  and  8  Vict.  154,  ch.  66,  §  16.  This  was  later  repealed  by  §  10  (1)  of  the  Act 
of  1870,  which  lays  down  the  broad  principle  that  the  nationality  of  a  married  woman 
follows  that  of  her  husband.  33  and  34  Vict.,  ch.  14,  §  10  (1).  This  provision  is 
retained  in  the  British  Nationality  and  Status  of  Aliens  Act,  1914,  4  and  5  Geo.  V, 
ch.  17,  §  10,  with  the  new  proviso  "that  where  a  man  ceases  during  the  continuance 
of  his  marriage  to  be  a  British  subject,  it  shall  be  lawful  for  his  wife  to  make  a  declara- 
tion that  she  desires  to  retain  British  nationality  and  thereupon  she  shall  be  deemed 
to  remain  a  British  subject."  See  Piggott,  F.  T.,  Nationality,  London,  1906,  1, 
.^)7-61. 

*  Section  1994.  The  slight  change  in  language  does  not  affect  the  substance  of 
Lhc  Act. 


FOREIGN-BORN   WIFE    OF   AMERICAN    CITIZEN  595 

of  the  United  States,  and  who  might  herself  be  lawfully  naturalized, 
snail  be  deemed  a  citizen." 

The  effect  of  this  statute  is  that  every  alien  woman  who  marries 
a  citizen  becomes  perforce  herself  a  citizen,  without  the  formality  of 
naturalization  and  regardless  of  her  wish  in  that  respect.^ 

Certain  matters  connected  with  the  statute  require  brief  explana- 
tion. The  first  is  as  to  the  meaning  of  the  word  "married."  In  order 
to  confer  citizenship  must  the  husband  be  a  citizen  at  the  time  of 
the  marriage,  or  does  his  subsequent  naturalization  have  the  same 
effect?  -  It  has  been  held  that  the  word  refers  to  the  status  of  being 
married  to  a  citizen,  and  not  to  the  time  when  the  marriage  is  cele- 
brated,^ so  that  whenever  citizenship  of  the  husband  and  the  state 
of  marriage  concur,  regardless  of  the  priority  of  either,  the  woman  is 
"married  to  a  citizen,"  and  endowed  with  citizenship.^ 

The  second  question  relates  to  the  necessity  of  the  wife's  residence 
in  the  United  States  as  a  condition  of  citizenship.  A  practically  uni- 
form line  of  decisions  has  established  the  rule  that  the  wife's  residence 
in  the  United  States  is  not  necessary  to  confer  citizenship  upon  her, 
either  at  any  time  during  the  marriage  or  after  the  death  of  the  hus- 
band.^ Several  secretaries  of  State,  however,  have  been  inclined 
not  to  follow  the  decisions  of  our  municipal  courts,  and  have  held 
that  naturalization  in  the  United  States  had  no  international  effect 
on  the  allegiance  of  the  wife  while  she  continues  to  reside  in  the  country 
of  origin.^  Nevertheless,  the  use  of  good  offices  has  been  authorized 
to  assist  the  emigration  of  such  foreign-born  wives  with  a  view  to 

iKane  v.  McCarthy,  63  N.  C.  299,  302;  Kelly  v.  Owen,  7  Wall.  (74  U.  S.),  496, 
and  cases  cited  in  H.  Doc.  326,  op.  cit.,  31  and  146-150. 

2  Van  Dyne,  Citizenship,  121. 

3  Kane  v.  McCarthy,  63  N.  C.  299;  Kelly  v.  Owen,  7  Wall.  496. 

*  14  Op.  Atty.  Gen.  406  (Williams);  Renner  v.  MuUer,  57  How.  Pr.  229. 

6  Kane  v.  McCarthy,  63  N.  C.  299;  Ware  ;;.  Wisner,  50  Fed.  310;  U.  S.  ex  rel. 
Nicola  and  Gendering  t'.  Williams,  184  Fed.  322,  and  other  cases  cited  by  Van  Dyne, 
op.  cit.,  124,  and  by  Moore's  Dig.  Ill,  §  410.  See  also  14  Op.  Atty.  Gen.  402,  27  Op. 
Atty.  Gen.  507  (Wickershani),  reviews  the  cases. 

s  Moore's  Dig.  Ill,  §416;  Van  Dyne,  Naturalization,  234-238.  The  view  of  the 
Department  is  correct  in  international  law,  provided  that  the  country  of  origin 
asserts  a  conflicting  claim  to  the  allegiance  of  the  married  woman,  but  not  if  it  ad- 
mits that  her  citizenship  follows  that  of  her  husband. 


596  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS    ABROAD 

joining  their  American-resident  husbands.  It  has,  moreover,  Ijeen 
the  practice  of  the  Department  of  State  to  refuse  a  passport  to  a  foreign- 
born  widow  of  an  American  citizen  who  has  never  been  in  the  United 
States  and  who  has  no  intention  of  coming  here  to  reside.^  The  Act 
of  March  2,  1907  -  has  modified  the  effect  of  these  rulings  by  mailing 
the  retention  of  American  citizenship  by  a  foreign-born  non-resident 
willow  of  an  American  citizen  dependent  upon  her  registration  of 
citizenship  before  a  United  States  consul  within  one  year  after  the 
termination  of  the  marriage. 

It  must,  of  course,  be  remembered  that  the  rule  conferring  American 
citizenship  upon  the  non-resident  wife  of  an  American  citizen  has 
no  obligatory  effect  in  foreign  countries,  so  that  the  United  States 
could  not  impose  its  citizenship  and  protection  upon  such  non-resident 
woman  against  a  conflicting  claim  of  citizenship  on  the  part  of  her 
native  country.^ 

A  third  matter  of  importance  relates  to  the  meaning  of  the  clause 
"who  might  herself  be  lawfully  naturalized."  Prior  to  the  Immigration 
Act  of  1907  it  had  been  held  on  several  occasions  that  these  words 
refer  to  the  class  or  race  that  might  be  lawfully  naturalized,  and  com- 
pliance with  the  other  conditions  of  the  naturalization  laws,  such 
as  character,  residence,  etc.,  was  not  required.  That  is  to  say,  the 
terms  of  the  statute  apply  to  "free  white  women"  (or  those  of  African 
nativity,  under  the  Act  of  July  14,  1870,  or  an  Indian  under  the  Act  of 
August  9, 1888)  and  exclude  Chinese,  Japanese  and  other  women  of  races 
which  cannot  become  naturalized  under  the  laws  of  the  United  States.^ 

'  Infra,  p.  599. 

2  Act  of  March  2,  1907,  §  4,  34  Stat.  L.  1229,  infra,  p.  600. 

'  13  Op.  Atty.  Gen.  128  (Hoar),  Sec'y  of  State  Foster  to  Mr.  Thompson,  Feb.  9, 
1893,  For.  Rel.,  1893,  598;  Moore's  Dig.  Ill,  §  416.  Sec'y  Olney  expressed  the  view 
that  the  naturalization  of  a  Turk  does  not  naturahze  his  Turkish  wife,  resident  in 
Turkey  and  never  in  the  U.  S.  S.  Doc.  83,  54th  Cong.,  1st  sess.,  For.  Rel.,  1895,  II, 
1471-1473;  Van  Dyne,  NaturaUzation,  235-238.  As  already  observed,  this  view 
is  contrary  to  the  decisions  of  the  courts.  Provided  the  woman  is  denationahzed 
in  her  native  state  by  marriage  to  an  alien,  as  is  the  case  in  Turkey,  no  conflict  of 
laws  arises,  and  there  seems  no  reason  not  to  endow  her  with  her  husband's  national- 
ity. See  U.  S.  ex.  rel  Nicola  v.  Williams,  173  Fed.  626,  affirmed,  184  Fed.  322;  Mr. 
Fish,  Sec'y  of  State,  to  Mr.  Jewell,  June  9,  1874,  Moore's  Dig.  Ill,  4.57,  461. 

*  Burton  v.  Burton,  26  Howard  Pr.  474;  Kelly  v.  Owen,  7  Wall.  496;  Leonard  v 


FOREIGN-BORN    WIFE   OF   AMERICAN   CITIZEN  597 

Under  the  Immigration  Act  of  Feb.  20,  1907  certain  classes  of  aliens, 
among  others,  those  having  certain  contagious  diseases,  are  excluded 
from  the  United  States.  The  question  has  been  presented  to  the  courts 
whether  the  provisions  of  the  Immigration  Act  apply  to  the  foreign-born 
wives  of  citizens  of  the  United  States,  or  whether,  as  citizens,  they 
must  be  admitted  under  any  circumstances.  The  decisions  have 
been  conflicting.  In  two  cases  it  has  been  held  that  it  was  no  part 
of  the  intended  policy  of  §  1994  to  annul  or  override  the  immigration 
laws  so  as  to  authorize  the  admission  into  the  country  of  the  wife  of 
a  naturalized  alien  not  otherwise  entitled  to  cnter.^  The  opinion 
was  expressed,  with  reference  to  the  clause  "who  might  herself  be 
lawfully  naturalized,"  that  if  the  woman  belonged  to  a  class  of  aliens 
forbidden  by  law  to  enter  or  to  remain,  it  cannot  be  said  that  she  is 
capable  of  being  lawfully  naturalized. 

In  other  cases,  however,  marriage  of  an  alien  woman  to  an  American 
citizen  has  been  held  to  operate  as  a  bar  to  the  application  of  the  pro- 
visions for  exclusion  and  deportation  under  the  Immigration  Act, 
§  1994  being  regarded  as  unaffected  by  that  Act.^ 

The  Department  of  State  usually  extends  its  diplomatic  protection 
to  the  non-resident  foreign-born  wife  of  a  native  American  citizen. 
In  the  case  of  an  American  citizen  going  abroad,  in  company  with 
his  wife,  it  is  the  practice  of  the  Department  in  issuing  a  passport, 
to  include  after  the  name  of  the  applicant  the  phrase  "accompanied 
by  his  wife."  Until  recently,  it  was  the  custom  to  omit  this  phrase 
when  the  applicant's  wife  was  a  Japanese  or  Chinese  woman.  It  is 
the  practice  of  the  immigration  authorities  to  admit  such  women  upon 
the  presentation  of  a  certificate  from  a  United  States  consular  officer 
stating  that  they  are  married  to  American  citizens.^    As  the  reference 

Grant,  5  Fed.  11  and  other  decisions  cited  by  Van  Dyne,  op.  cit.,  120-121;  For.  Rel., 
1903,  44-45.  Claim  of  Mrs.  Coe,  a  Sainoan  widow  of  American  citizen,  v.  U.  S., 
Report  of  Jos.  R.  Baker  to  Sec'y  of  State,  H.  Doc.  1257,  G2ud  Cong.,  3rd  sess.,  17. 

^  In  re  Rustigian  (1908),  165  Fed.  980,  982  (appears,  however,  to  be  dictum); 
Ex  parte  Kaprielian  (1910),  188  Fed.  694. 

2  U.  S.  ex  rel.  Nicola  v.  Williams,  173  Fed.  626,  aff.  184  Fed.  322;  Hopkins  v.  Fa- 
chant,  130  Fed.  839,  65  C.  C.  A.  1  (see  note  at  p.  5);  27  Op.  Atty.  Gen.  507- 
520  (Wickersham),  in  which  the  cases  are  discussed  and  the  Rustigian  opinion  crit- 
icized. 

'  See  circular  instruction  of  Jan.  18,  1908. 


598  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

to  the  wife  in  the  passport  is  not  a  certificate  or  statement  of  her  citizen- 
!?hip,  the  Department  has  decided  no  longer  to  omit  the  phrase  above 
mentioned  in  the  case  of  Japanese  or  Chinese  wives  of  American  citi- 
zens. 

In  the  case  of  the  non-resident  wife  of  a  person  who  becomes  natural- 
ized, the  Department  has  held  on  numerous  occasions  that  naturaliza- 
tion had  no  international  effect  on  the  allegiance  of  the  wife  while 
she  continues  to  reside  in  the  country  of  origin.^  Where  the  native 
country,  however,  recognizes  the  American  naturalization  of  the  hus- 
band as  a  valid  change  of  allegiance,  and  provides,  as  is  generally  the 
case,  that  a  woman  follows  the  nationality  of  her  husband,  there  seems 
no  reason  for  denying  American  citizenship  to  the  non-resident  foreign- 
born  wife  of  a  naturalized  citizen,  thus  following  the  decisions  of  our 
municipal  courts.  In  recent  years,  indeed,  it  appears  that  the  Depart- 
ment has  freely  issued  passports  to  the  foreign-born  non-resident 
wives  of  American  citizens,  without  inquiry  into  the  recognition  of 
their  American  citizenship  by  the  country  of  residence.  But  even 
where  formal  protection  of  the  absent  family  of  a  naturalized  citizen 
has  been  otherwise  denied,  the  Department  has  not  hesitated  to  in- 
struct its  diplomatic  representatives  to  use  their  good  offices  to  pro- 
cure permission  for  and  to  assist  the  emigration  of  such  persons  to 
join  the  husband  and  father  in  the  United  States.  This  informal 
assistance  has  been  extended  frequently  in  Turkey.^ 

§  265.  Foreign-bom  Widow  of  American  Citizen. 

A  married  woman,  as  a  general  rule,  takes  her  husband's  nationality 
and  domicil.  Upon  his  death,  such  nationality  and  domicil  adhere 
to  her  until  she  abjures  the  one  and  abandons  the  other.  The  foreign- 
born  widow  of  an  American  citizen  may,  after  the  husband's  death, 
revert  to  her  original  citizenship  or  retain  her  American  citizenship.^ 
In  determining  the  right  of  such  a  widow  to  the  continued  protection 

'Moore's  Dig.  Ill,  §416;  Van  Dyne,  Naturalization,  235-238.  As  already  ob- 
served, this  seems  directly  contrary  to  the  decisions  of  American  courts  and  opinions 
of  Attorneys  General,  above  cited.  In  the  case  of  non-resident  children,  the  iiiling 
is  in  accordance  with  §  2172,  R.  S.,  supra,  p.  459. 

2  Moore's  Dig.  Ill,  §  418. 

» Ibid.,  ^411;  infra,  ^  mo. 


FOREIGN-BORN   WIDOW   OF  AMERICAN  CITIZEN  599 

of  the  United  States,  the  Department,  even  before  the  Act  of  March  2, 
1907,  laid  much  emphasis  upon  the  matter  of  her  election  of  citizen- 
ship. In  estabUshing  her  election,  the  place  of  her  domicil  was  deemed 
of  prime  importance.  If,  after  the  death  of  her  husband,  she  continued 
a  previous  residence  in,  or  if  abroad,  came  to  the  United  States,  her 
American  citizenship  was  construed  as  continuing  even  after  widow- 
hood, and  she  was  fully  protected  as  an  American  citizen.  The  United 
States  has  even  resisted  the  claim  of  her  native  country  to  her  citizen- 
ship, so  long  as  the  widow  remained  in  the  United  States.^ 

On  the  other  hand,  if  such  a  widow  resided  abroad  and  had  no  in- 
tention of  coming  to  the  United  States,  protection  was  usually  refused.^ 
Where,  for  example,  a  foreign-born  alien  woman,  married  abroad  to 
an  American  citizen,  and  both  during  and  after  the  termination  of 
the  marriage  (by  death  or  divorce)  continued  to  reside  in  her  native 
country,  the  Department  has  considered  itself  as  not  warranted  in 
extending  diplomatic  protection  to  her.^  When  she  thereby  resumed 
her  original  nationality  in  the  country  of  her  origin,  the  United  States, 
under  well-established  principles,  could  not  protect  her  in  the  country 
of  her  birth  and  continued  domicil.^  In  line  with  these  views,  the 
Department  has  held  that  an  alien  woman  who  married  an  American 
citizen  and  secured  a  divorce  from  him  in  the  United  States  and  then  re- 

^  Mr.  Adee,  Ass't  Sec'y  of  State,  to  Mr.  Knagenhjelm,  Aug.  21,  1895,  Moore's 
Dig.  Ill,  458  (a  divorcee  of  a  naturalized  citizen). 

2  Moore's  Dig.  Ill,  §411.  The  occasional  exceptions  occurred  in  cases  where 
the  foreign  residence  was  in  an  extraterritorial  country,  or  where  her  original  na- 
tionality did  not  revert  according  to  the  law  of  her  native  country,  so  that  her  con- 
tinued foreign  residence  was  not  inconsistent  with  American  citizenship.  See  Act'g 
Sec'y  Uhl  in  For.  Rel.,  1894, 139,  and  Sec'y  Hay  to  Mr.  Choate,  Jan.  14, 1901,  Moore's 
Dig.  Ill,  459. 

3  Mr.  Evarts,  Sec'y  of  State,  to  Mr.  Marced  de  la  Rodia,  June  21,  1879,  Moore's 
Dig.  Ill,  458. 

*  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Baker,  Jan.  24,  1894,  For.  Rel.,  1894,  460. 

An  exception  appears  to  have  been  made  in  the  case  of  Mrs.  Groce,  a  native  Ni- 
caraguan,  and  mdow  of  an  American  citizen.  Having  been  always  domiciled  in 
Nicaragua,  she  recovered  Nicaraguan  nationality  on  widowhood.  The  U.  S.  never- 
theless demanded  from  Nicaragua  S  10,000  indemnity  for  the  murder  of  Mr.  Groce, 
on  behalf  of  the  widow  and  children,  also  native  Nicaraguans.  The  U.  S.  in  the 
meantime  advanced  the  widow  $60  per  month  for  the  support  of  the  family,  but 
reduced  this  to  $50  when  the  widow  remarried.  The  original  claim  for  indemnity, 
however,  was  not  reduced. 


600  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

turns  to  her  native  country  to  reside  must  be  deemed  to  have  aban- 
doned the  citizenship  acquired  by  marriage  and  to  have  intended  to 
adopt  her  native  allegiance.^ 

This  practice  of  the  Department  has  received  statutory  sanction, 
with  slight  modifications,  by  the  Act  of  March  2,  1907.  This  Ac^ 
provides  that 

''any  foreign  woman  who  acquires  American  citizenship  by  marriage 
to  an  American  shall  be  assumed  to  retain  the  same  after  the  termination 
of  the  marital  relation  if  she  continue  to  reside  in  the  United  States, 
unless  she  makes  formal  renunciation  thereof  before  a  court  having 
jurisdiction  to  naturalize  aliens,  or  if  she  resides  abroad  she  may  re- 
tain her  citizenship  by  registering  as  such  before  a  United  States  consul 
within  one  year  after  the  termination  of  such  marital  relation."  ^ 

It  has  been  held  by  the  Department  that  this  section  cannot  be 
applied  retroactively.  Moreover,  with  respect  to  non-resident  widows, 
the  provision  for  consular  registration  for  the  purpose  of  retaining 
American  citizenship  would  appear  to  lay  down  a  procedure  which 
is  optional  with  the  individual  and  not  mandatory,  and  that  other 
methods  of  retaining  citizenship  are  not  excluded  by  the  words  of  the 
Act.^  Thus,  by  returning  at  once  to  the  United  States  to  reside  the 
woman  would,  it  seems,  clearly  manifest  her  election,  without  any 
consular  registration.  Again,  it  would  seem  that  registration  in  lega- 
tions, which  is  allowed  for  many  purposes  connected  with  citizenship, 
might  be  acceptable  as  an  election  of  citizenship.     Moreover,  it  has 

'  Case  of  Mrs.  Weiss,  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Winchester,  March  19, 
188S,  For.  Rel.,  1S88,  II,  1531;  Case  of  Mrs.  Abeldt-Fricker,  Mr.  Root,  Sec'y  of  State, 
to  the  Swiss  Minister,  June  2,  1906,  For.  Rel.,  1906,  1365;  Case  of  Mrs.  I.  Mathias, 
Act'g  Sec'y  Bacon  to  Mr.  Hill,  Jan.  28,  1909,  For.  Rel.,  1909,  273. 

2  Act  of  March  2,  1907,  §  4,  34  Stat.  L.  1229.  The  words  "as  such"  are  not  well 
used,  although  the  intention  of  the  framers  of  the  Act  is  probably  clear.  Under 
British  law  the  nationality  of  the  niarriage  state  continues  after  widowhood.  This 
is  specifically  provided  in  the  British  Nationality  and  Status  of  Aliens  .\ot,  1914, 
§  11.  The  Act  of  1870  mentioned  only  British  women,  the  widows  of  aliens.  Pig- 
go  tt,  oj).  cit.,  61. 

3  In  the  Circular  Instruction  of  April  19,  1907  (For.  Rel.,  1907,  10),  in  which  the 
Executive  order  of  April  6,  1907  is  quoted,  the  procedure  for  proof  of  citizenship 
and  registration  are  set  forth.  The  Circular  states  that  the  woman  "must,  within 
one  year  .  .  .  register  with  an  American  consular  officer."  This  is  a  departure  from 
the  terms  of  the  statute;  the  practice  of  the  Department  has  not  considered  the 
requirement  mandatory. 


AMERICAN-BORN   WIFE   OF   AN   ALIEN  601 

been  the  practice  of  the  Department  to  allow  the  widows  of  American 
citizens,  in  some  cases,  to  register  after  the  expiration  of  the  one  year 
mentioned  in  the  statute.  Where  an  alien-born  widow  or  divorced 
wife  of  an  American  citizen  has  not  come  to  the  United  States  or  regis- 
tered her  intention  to  retain  American  citizenship  as  provided  by  the 
Act,  or  where,  after  the  termination  of  the  marriage,  she  left  the  United 
States,  it  would  seem  that  she  should  be  subject  to  the  same  presump- 
tion of  expatriation  which  applies  to  any  other  naturalized  citizen 
under  §  2  of  the  Act  of  March  2,  1907.' 

§  266.  American-born  Wife  of  an  Alien. 

The  question  as  to  whether  an  American  woman  who  marries  a 
foreigner  becomes  herself  an  alien  has  been  before  the  courts  on  several 
occasions,  with  results  which  can  hardly  be  considered  as  satisfactory. 
It  has  already  been  observed  ^  that  at  common  law  a  native  woman 
did  not  lose  her  citizenship  by  marriage  to  an  alien.  In  view  of  the 
fact  that  foreign  women  did  not,  prior  to  1855,  become  American 
citizens  by  marriage  to  Americans,  and  in  view  of  the  then  existing 
theory  as  to  the  impossibility  of  voluntary  expatriation  without  govern- 
mental consent,  it  is  not  surprising  that  the  decisions  of  the  first  half 
of  the  nineteenth  century  held  that  an  American-born  woman  did 
not  lose  her  American  citizenship  by  marriage  to  an  alien.^  Since 
1890,  several  cases  have  again  called  the  matter  into  question.  Until 
the  Act  of  1907,  the  courts  inclined  to  the  view  that  if  the  native  woman 
married  a  non-resident  alien,  she  is  to  be  deemed  an  alien  provided  there 
be  "that  withdrawal  from  her  native  country  or  equivalent  act  ex- 
pressive of  her  election  to  renounce  her  former  citizenship  as  a  conse- 
quence of  her  marriage."  *  Where,  however,  the  alien  was  a  resident 
and  the  matrimonial  domicil  was  always  in  the  United  States,  which 
the  woman  never  left,  a  federal  court  in  the  case  of  Comitis  v.  Parker- 
son  ^  expressed  the  opinion  that  the  American  wife  did  not,  under 

1  Infra,  §  330. 

2  Supra,  p.  593. 

s  Shanks  v.  Dupont  (1830),  3  Peters,  242;  Beck  v.  McGillis  (1850),  9  Barb.  35. 
See  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  150-151.    See  also  Van  Dyne,  op.  cit.,  §  55. 

*  Ruckgaber  v.  Moore  (1900),  104  Fed.  947,  aff.  in  114  Fed.  1020.  See  also  Jeinios 
or  Jenns  v.  Landes  (1897),  84  Fed.  73;  85  Fed.  801. 

« Comitis  V.  Parkerson  (1893),  56  Fed.  556,  and  note  in  22  L  R.  A.  148;  H.  Doc. 


602  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

these  circumstances,  lose  her  American  citizenship.  In  this  case,  the 
court  disapproved,  while  distinguishing,  an  earlier  federal  decision 
of  Mr.  Justice  Brown,  ^  in  which  he  had  held  that  an  alien  woman  who 
had  once  become  an  American  citizen  by  marriage,  which  marriage 
is  subsequently  dissolved,  may  resume  her  alienage  by  marriage  to 
an  alien — in  the  case  at  bar,  a  native  of  her  original  country. 

The  many  possibihties  of  dual  allegiance  created  by  a  ruling  such 
as  that  in  the  case  of  Comitis  v.  Parkerson,  lend  some  weight  to  the 
view  that  the  decision  in  the  case  of  Pequignot  v.  Detroit  is  the  sounder 
of  the  two,  and  time  has  apparently  confirmed  that  view.  By  the 
Act  of  March  2,  1907,  Congress  has  provided  "that  any  American 
woman  who  marries  a  foreigner  shall  take  the  nationality  of  her  hus- 
band."2 

The  Supreme  Court  of  California  in  a  recent  decision  ^  held  that 
by  such  a  marriage  an  American  woman  ceased  to  be  a  citizen  of  the 
United  States,  whether  she  intended  that  result  or  not,  and  notwith- 
standing the  fact  that  she  was  married  in  this  country  to  an  alien  per- 
manently here  resident  and  that  both  she  and  he  continued  here  to  re- 
side. The  decision  is,  however,  open  to  several  questions:  is  it  opposed 
to  §  1  of  the  Fourteenth  Amendment  in  depriving  a  native  citizen  of 
citizenship;  did  the  Act  of  1907  intend  to  expatriate  a  native  woman 
who  had  never  left  the  United  States;  has  Congress  the  power  to 

326,  op.  dt.,  150.  See  also  Wallenburg  v.  Mo.  Pac.  Ry.  Co.  (1908),  159  Fed.  217. 
It  seems  that  the  Act  of  1907  was  not  called  to  the  court's  attention  in  this  case. 

1  Pequignot  v.  Detroit  (1883),  16  Fed.  211.  See  also  H.  Doc.  326,  op.  cit.,  152. 
Justice  Brown,  in  a  well-reasoned  opinion,  considered  Shanks  v.  Dupont,  3  Pet.  242, 
as  no  longer  binding,  the  reasons  on  which  that  decision  was  based — the  impossibility 
of  voluntary  expatriation,  and  the  continued  alienage  of  an  alien  woman  who  marries 
a  citizen — having  ceased  to  exist.  Justice  Brown's  decision  is  squarely  contrary  to 
that  of  Sol.  Gen.  Phillips  in  Mrs.  D'Ambrogia's  case,  15  Op.  Atty.  Gen.  599  (cited 
\s  ith  approval  in  Kreitz  v.  Behrensmeyer,  1888,  125  111.  141,  198)  in  which,  relying 
nj)on  Shanks  v.  Dupont,  he  held  that  marriage  of  an  alien  woman  to  a  citizen  con- 
icrred  upon  her  a  permanent  status  of  citizenship,  not  defeasible  by  her  second 
marriage  to  a  resident  alien. 

-  Act  of  March  2,  1907,  §  3.  Such  a  provision  has  been  in  force  in  England  since 
1870.  33  and  34  Vict.,  ch.  14,  §  10  (1).  It  is  reincorporated  in  the  British  Act  of 
1914,  §  10,  not  without  vigorous  opposition  from  various  members.  See  Parliamen- 
tary Debates,  July  29,  1914,  col.  1461,  1487  el  seq. 

'  Mackenzie  ; .  Hare  (1913),  165  Cal.  776,  783. 


AMERICAN-BORN    WIFE    OF   AN   ALIEN  003 

impute  a  foreign  nationality  to  a  native  woman  marrying  an  alien, 
and  especially,  assuming  that  the  husband's  national  state  does  not 
make  her  a  citizen  by  the  marriage,  can  Congress  thus  deprive  a 
native  citizen  of  all  nationality^;  does  the  Act  of  1907  relate  to  mar- 
riages concluded  prior  to  its  enactment?  Some  or  all  of  these  questions 
will  undoubtedly  be  passed  upon  by  the  United  States  Supreme  Court  in 
the  appeal  which  has  been  noted  from  the  decision  of  the  California 
court. 

Between  1862  and  1869  different  Attorneys  General  of  the  United 
States  expressed  their  opinions  upon  the  effect  of  the  marriage  of  an 
American  woman  to  a  foreigner.  In  the  case  of  Mrs.  Preto,  Mr.  Bates 
held  that  the  marriage  in  this  country  of  an  American  woman  to  a 
Spanish  subject  and  their  subsequent  residence  in  Spain  until  his 
death,  did  not  divest  her  of  American  citizenship.^  On  the  other 
hand.  Attorney  General  Stanbery  held  that  the  marriage  of  an  Amer- 
ican girl  to  a  French  subject  in  France,  where  she  had  always  been 
domiciled,  conferred  upon  her  French  nationality,  and  she  was  not  to 
be  treated  as  a  citizen  of  the  United  States.-  Attorney  General  Hoar 
concurred  in  this  opinion  so  far  as  it  had  reference  to  the  internal 
revenue  act  (subjecting  citizens  abroad  to  an  income  tax),  but  declined 
to  express  an  opinion  as  to  whether  a  citizen  by  birth,  marrying  a 
Frenchman,  "is  not  after  such  a  marriage  a  citizen  of  the  United 
States  in  a  qualified  sense."  ^ 

The  rulings  of  the  State  Department  prior  to  the  Act  of  1907  have 
not  been  entirely  consistent.  While  recognizing  the  fact  that  in  strict 
law,  an  American  woman  did  not  lose  her  American  citizenship  by 
marrying  a  foreigner,  nor  suffer  the  disabilities  of  alienage  so  far  as 
property  rights  were  concerned,  nevertheless  when  she  was  residing 
abroad  and  had  by  her  marriage,  in  contemplation  of  the  law  of  her 
husband's  country,  acquired  his  citizenship,  an  American  passport 
and  protection  were  refused  her.  Her  citizenship  during  coverture 
was  held  not  to  be  completely  divested  but  to  be  in  abeyance  only, 
and  susceptible  of  revival  after  widowhood,  "by  her  return  to  the 

1 10  Op.  Atty.  Gen.  321. 
*  12  Ibid.  7. 
» 13  Ibid.  128. 


604  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

jurisdiction  and  allegiance  of  the  United  States."  ^  As  a  practical 
matter,  American  women  married  to  aliens  very  rarely  received  the 
diplomatic  protection  of  the  United  States  abroad.^ 

§  267.  American-born  Widow  of  an  Alien. 

Upon  the  termination  of  the  marital  relation,  however,  by  death 
or  divorce,  her  right  to  revert  to  American  citizenship  was  freely  ad- 
mitted. If  a  non-resident  American-born  widow  or  divorced  wife 
of  an  alien  gave  evidence  of  her  intention  to  resume  her  residence  and 
citizenship  in  the  United  States,  or  if,  having  been  resident  in  the 
United  States,  she  continued  here  to  reside,  a  passport  was  issued 
and  protection  extended  to  her  as  an  American  citizen.^ 

Section  3  of  the  Act  of  March  2,  1907,  first  gave  statutory  expres- 
sion in  the  United  States  to  the  principle  that  "any  American  woman 
who  marries  a  foreigner  shall  take  the  nationality  of  her  husband." 
This  rule,  which  follows  the  British  law,'*  also  adheres  to  its  principal 
defect,  in  that  it  appears  to  ignore  the  law  of  the  country  to  which 
an  alien  who  marries  an  American  woman  belongs.''  If  his  national 
law  should  not  endow  her  with  his  citizenship,  a  peculiar  case  of  no 
nationality  would  arise. 

Section  3  of  the  Act  of  March  2,  1907  provides  further: 

"At  the  termination  of  the  marital  relation  [the  American  woman 
who  marries  a  foreigner]  may  resume  her  American  citizenship,  if  abroad, 
by  registering  as  an  American  citizen  within  one  year  with  a  consul  of 
the  United  States,  or  by  returning  to  reside  in  the  United  States,  or,  if 
residing  in  the  United  States  at  the  termination  of  the  marital  relation, 
by  continuing  to  reside  therein."  ^ 

1  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Phelps,  Feb.  1,  1890,  For.  Rel.,  1890,  301. 
(Case  of  Mrs.  Heisinger.) 

2  See  the  extracts  from  For.  Rel.,  and  other  papers  quoted  in  Moore's  Dig.  Ill, 
4.50-4.54,  and  Van  Dyne,  Citizenship,  133-138. 

3  Moore's  Dig.  Ill,  §  409.  Sec  also  Act'g  Sec'y  Bacon  to  Mr.  Clay,  Jan.  26,  1906, 
For.  Rel.,  1906,  1370. 

^  33  and  34  Vict.,  ch.  14,  §  10  (1);  reincorporated  in  4  and  ,5  Geo.  V,  c.h.  17,  §  10, 
with  the  proviso  noted,  supra,  p.  594. 

*  The  nationality  laws  of  some  foreign  countries  take  account  of  this  contingency 
by  a  proviso,  e.  g.,  art.  1 1  of  the  Belgian  Idw  of  June  8,  1909;  art.  2,  §  4  of  the  Mexican 
law  of  May  28,  1886,  and  supra,  p.  594,  note  1. 

''  See  also  Circular  Instruction  of  April  19,  1907,  Registration  of  women  who  de- 
sire to  resume  or  retain  American  citiz  .'uship.  For.  Rel.,  1907,  10. 


DECISIONS   OF    INTERNATIONAL   TRIBUNALS    OF   ABRITRATION       605 

In  contrast  to  the  liberal  interpretation  given  to  §  4  of  the  Act,  it 
has  been  held  that  the  American-born  widow  of  an  ahen,  according 
to  §  3,  must  register  within  a  year  at  an  American  consulate,  and 
that  the  period  for  registration  cannot  be  extended  beyond  the  year. 
She  may,  of  course,  at  any  time  resume  her  American  citizenship  by 
coming  to  the  United  States  permanently  to  reside.^  If  residing  abroad 
after  the  lapse  of  the  year  allowed  for  registration,  she  would  not  be 
protected  as  an  American  citizen.  A  marriage  is  considered  as  ter- 
minated by  death  or  divorce  only,  a  mere  separation  not  having  this 
effect.2 

§  268.  Decisions  of  International  Tribunals  of  Arbitration. 

International  commissions,  with  practical  uniformity  have  held 
that  the  nationality  of  a  married  woman  follows  that  of  her  husband 
in  all  cases,  irrespective  of  domicil.^ 

A  distinction  has,  however,  been  generally  made  in  the  case  of  widows. 
If  the  domicil  of  the  wife  and  widow  continue  to  be  that  of  her  hus- 

>  By  the  British  Act  of  1870  (33  and  34  Vict.,  ch.  14,  §  10,  2),  the  widow  may 
resume  British  nationality  by  going  through  a  process  of  repatriation,  which  is  prac- 
tically identical  with  naturalization.  Piggott,  op.  cit.,  61-62.  This  provision  ap- 
pears to  be  omitted  from  the  British  Nationality  and  Status  of  Aliens  Act,  1914. 
In  the  debates,  the  Secretary  of  State,  Harcourt,  stated  that  by  regulation  the  govern- 
ment would  enable  a  widow  to  resume  her  nationality  or  rather  claim  new  naturaHza- 
tion,  counting  her  residence  in  Great  Britain  before  marriage  in  the  five-year  resi- 
dence period.    Debates,  July  29,  1914,  col.  1461  el  seq. 

2  Dictum  of  Act'g  Sec'y  Bacon,  For.  Rel.,  1909,  273. 

3  Brand  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2487  (notwithstanding 
attempt,  by  certain  registration,  to  assert  her  original  nationality);  Tooraen,  ibid. 
2486,  Hale's  Rep.  18;  Bowie,  iUd.  2485,  Hale's  Rep.  17;  Grayson  (Gt.  Brit.)  v.  U.  S., 
May  8,  1871,  Hale's  Rep.  19;  Lebret  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb. 
2488,  2492.  (All  cases  of  alien  women  married  to  American  citizens  whose  claims 
against  the  U.  S.  in  the  character  of  aliens  were  dismissed.)  See  also  Biencourt 
(U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  2483  (dictum  by  Wadsworth,  Amer. 
com.,  in  which  it  was  said  that  by  marriage  in  U.  S.  to  an  alien,  an  American  woman 
did  not  take  her  husband's  nationalitj') ;  Bertherand  (U.  S.)  v.  Mexico,  ibid.  2485; 
Maxan  (U.  S.)  v.  Mexico,  ibid.  2485;  Young  (U.  S.)  v.  Mexico,  ibid.  1.353.  (In  these 
cases,  Biencourt's  claim  being  allowed  on  another  ground,  American  women  married 
to  aliens  were  held  not  to  be  American  citizens,  and  their  claims  as  such  were  dis- 
allowed. See  also  in  support  of  the  general  rule,  Lizardi  (U.  S.)  v.  Mexico,  July  4, 
1868,  Moore's  Arb.  2483;  Calderwood  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  ibid.  2485- 
2486;  Giacopini  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  767, 


606  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

band's  national  country,  citizenship  during  marriage  has  been  held 
to  continue  unchanged  after  widowhood.^  If,  however,  as  a  widow 
she  continues  her  domicil  in  or  returns  permanently  to  her  native 
country,  under  whose  law  her  original  nationaUty  reverts,  international 
commissions  have  almost  uniformly  held  that  not  the  nationality  of 
her  deceased  husband  (which  can  have  no  obligatory  exterritorial 
effect),  but  the  law  of  her  native  country  and  actual  and  continued 
domicil  governs  her  citizenship.^ 

CHILDREN 

§  269.  Citizenship  at  Birth. 

It  is  not  within  the  purview  of  this  work  to  discuss  the  municipal 
law  of  citizenship.  Nevertheless,  inasmuch  as  the  international  as- 
pects of  citizenship  are  often  necessarily  involved  in  the  matter  of 
diplomatic  protection,  it  seems  desirable  briefly  to  notice  some  of  the 
principal  features  connected  with  the  acquisition  of  American  citizen- 
ship and  title  to  protection. 

Citizenship  is  acquired  by  birth  or  naturalization.  Citizenship 
by  birth  may  be  acquired  either  by  birth  in  the  United  States  or  by 
birth  abroad  to  American  citizens.^    The  effects  of  a  conflict  with  the 

1  Brand  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2487,  Hale's  Rep.  18; 
Bowie,  ibid.,  Moore's  Arb.  2486,  Hale,  17. 

^  The  majority  of  the  British-American  commission  of  1871  held  that  the  national 
character  of  the  widow  acquired  by  marriage  remained  unchanged,  regardless  of 
domicil,  apparently.  Calderwood  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb. 
2485,  Hale's  Rep.  18.  Mr.  Frazer,  American  commissioner,  dissented  in  this  case, 
in  which  a  widow  of  American  origin  had  always  remained  domiciled  in  the  U.  S. 
Mr.  Frazer  believed  that  in  such  case  her  national  character  reverted.  It  must  be 
remembered  that  in  1871,  the  U.S.  had  no  law  providing  for  readmission  to  American 
citizenship  of  one  who  had  become  an  alien  through  her  marriage.  Ralston,  Umpire, 
disapproved  of  the  Calderwood  decision  in  Brignone  (Italy)  v.  Venezuela,  Feb.  13, 
1903,  Ralston,  717.  Venezuela,  in  which  many  of  the  cases  have  arisen,  has  for 
years  had  a  law  by  which  the  Venezuelan  citizenship  of  the  native  domiciled  widow 
of  an  alien  reverts.  In  support  of  the  principle  in  the  text  see  de  Hammer  and  de 
Brissot  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  2456,  2460-2461;  WiUett 
(U.  S.)  V.  Venezuela,  ibid.  2254  {dictum,  claim  disallowed  as  widow;  but  allowed  ae 
administratrix);  Massiani  (France)  v.  Venezuela,  Feb.  19,  1902,  S.  Doc.  533,  59th 
Cong.,  1st  sess.,  211;  Stevenson  (Gt.  Brit.)  v.  U.  S.,  Feb.  13,  1903,  Ralston,  444,  445; 
Brignone  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  716,  717;  MiUani  (Italy)  v. 
Venezuela,  ibid.  760;  Poggioli  (Italy)  v.  Venezuela,  ibid.  866. 

'  See  Van  Dyne,  Citizenship,  Rochester,  1904;  Wharton,  §  183  et  seq.,  Moore's 


CHILDREN  607 

law  of  other  countries  by  which  dual  nationality  ensues  have  already 
been,  to  some  extent,  considered,^ 

According  to  the  civil  rights  Act  of  April  9,  1866,^  "all  persons 
born  in  the  United  States,  and  not  subject  to  any  foreign  power,  ex- 
cluding Indians  not  taxed,  are  declared  to  be  citizens  of  the  United 
States,"  and  according  to  the  Fourteenth  Amendment  to  the  Con- 
stitution, adopted  in  1868,  "all  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  state  wherein  they  reside."  These  two 
definitions  appear  to  be  declaratory  of  the  common  law.  Yet  on  sev- 
eral occasions  the  courts  and  the  Department  of  State  appear  to  have 
misinterpreted  the  clauses  "not  subject  to  any  foreign  power"  and 
"subject  to  the  jurisdiction"  by  construing  them  so  as  to  exclude 
from  citizenship  the  children  born  in  this  country  of  ahen  parents, 
according  to  whose  national  law  their  children  became  subjects  jure 
sanguinis.^  The  uniform  construction  of  the  law  at  the  present  time 
confers  citizenship  upon  all  persons  (not  tribal  Indians)  born  in  the 
United  States,  even  of  aliens,  permanently  or  temporarily  here  resi- 
dent,^ and  interprets  the  clause  "subject  to  the  jurisdiction,"  as  ex- 
cluding merely  children  born  in  places  enjoying  exterritoriality,  such 
as  foreign  legations  or  public  vessels.^ 

As  has  been  observed,  when  a  child  born  in  this  country  of  alien 
parents  is  taken  abroad  at  an  early  age  to  the  country  of  his  parents, 
by  whose  national  law  he  is  deemed  a  subject  jure  sanguinis,  and  he 
continues  there  to  reside,  a  right  of  election  of  nationality  arises  at 

Dig.  Ill,  §§  373-374;  Report  of  Citizenship  Board,  H.  Doc.  326,  59th  Cong.,  2nd 
sess.  73-79. 

1  Supra,  §  253  et  seq. 

2  R.  S.,  §  1992. 

3  Dicta  in  Slaughter-House  Cases,  16  Wall.  73,  and  in  Elk  v.  Wilkins,  112  U.  S. 
99,  briefly  discussed  by  Van  Dyne,  op.  cit.,  12-15.  See  also  Hausding's  case,  For. 
Rel.,  1885,  394,  and  Greisser's  case.  For.  Rel.,  1885,  814.  An  account  of  the  develop- 
ment of  the  American  law  of  citizenship  by  birth  in  the  U.  S.  is  given  by  Van  Dyne, 
3  et  seq. 

*  Lynch  v.  Clark,  1  Sandf.  Ch.  583;  McCreery  v.  Somerville,  9  Wheat.  354;  In  re 
Look  Tin  Sing,  10  Sawyer,  353,  21  Fed.  905,  and  the  great  case  of  U.  S.  v.  Wong  Kim 
Ark  (1898),  169  U.  S.  649.  See  Report  of  Citizenship  Board,  73-74;  Van  Dyne, 
17-24;  and  Moore's  Dig.  Ill,  280. 

'  Geofroy  v.  Riggs,  133  U.  S.  258,  264;  Act'g  Sec'y  Wharton  in  For.  Rel.,  1891,  21. 


THE   DIPLOMATIC    PROTECTION   OF   CITIZENS    ABROAD 

majority.^  By  failing  to  manifest  his  election  of  American  citizen- 
ship, and  by  continuing  to  reside  abroad  after  majority,  he  loses  what- 
ever right  to  American  protection  he  may  have  had  during  minority. 
If  no  question  of  dual  nationality  arises,  it  would  seem  that  the  mere 
fact  of  long-continued  residence  abroad  would  not  deprive  him  of  his 
American  citizenship  or  protection.  It  is  quite  probable,  however, 
that  upon  return  to  this  country  even  a  considerable  time  after  majority, 
he  would  be  deemed  an  American  citizen  in  this  country. 

§  270.  Foreign-born  Children  of  American  Citizens. 
Citizenship  is  also  conferred,  at  birth,  upon  children 

"born  out  of  the  limits  and  jurisdiction  of  the  United  States,  whose 
fathers  were  or  may  be  at  the  time  of  their  birth  citizens  thereof  .  .  . 
but  the  rights  of  citizenship  shall  not  descend  to  children  whose  fathers 
never  resided  in  the  United  States."  ^ 

There  are  several  conditions  necessary  to  complete  title  to  American 
citizenship  under  this  statute.  First,  the  father  must  have  been  a 
citizen  at  the  birth  of  the  child.  If,  before  the  birth  of  the  child,  his 
citizenship  was  renounced  or  abandoned,  or  if  he  in  any  way  expatriated 
himself,  the  child  is  born  an  alien.^  If,  however,  the  expatriation 
of  the  father  occurs  after  the  birth  of  the  child,  it  has  been  held  that 
the  child  is  not  thereby  irrevocably  deprived  of  American  citizenship, 
but  that  he  may,  upon  attaining  majority,  revive  his  inchoate  right 
to  American  citizenship  by  returning  to  the  United  States,  thus  mani- 
festing his  election  of  American  citizenship.''  Notwithstanding  the 
repeated  assertion  of  the  Department  that  a  minor  is  incompetent 
to  elect  nationality,  it  is  certain  that  by  returning  to  the  United  States 
during  minority,  the  child  would  be  regarded  by  our  courts  as  an 

'  Supra,  §  259.    See  also  H.  Doc.  32G,  59th  Cong.,  2nd  sess.,  74-76. 

2  R.  S.,  §  1993,  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  77-80  and  American  decisions 
there  cited.  Van  Dyne,  Citizenship,  32-49;  Moore's  Dig.  Ill,  §§  374,  426.  The 
posthumous  child  is  also  held  to  be  an  American  citizen.    Rosen's  case,  1911. 

'  14  Op.  Atty.  Gen.  295,  and  infra,  §  319.  See  also  Warren-Lippit's  case,  For. 
Rel.  1910,  71,  76. 

^  Supra,  §  259.  It  would  seem  that  a  widowed  mother  cannot,  without  the  ap- 
proval of  the  court  of  the  child's  domicil,  change  the  domicil  and  nationality  of  her 
minor  child.  Scc'y  Bayard  to  Mr.  Liebermann,  July  9,  1886,  Moore'a  Dig.  541, 
citing  von  Bar  and  Foelix,  and  Lamar  v.  Micou,  112  U.  S.  542. 


ELECTION    OF   CITIZENSHIP    UNDER    §  6   OF   THE   ACT    OF    1907     609 

American  citizen,  and  if  he  subsequently  went  abroad,  would  be  en- 
titled to  American  protection.^  The  status,  during  minority,  of  the 
foreign-born  child  of  a  native  American  citizen  who,  after  the  birth 
of  the  child,  expatriates  himself,  does  not  appear  to  have  come  before 
the  American  courts. 

To  confer  citizenship  upon  a  child  born  abroad,  the  father  must  have 
resided  in  the  United  States.  This  limitation  upon  the  right  of  trans- 
mitting citizenship  indefinitely  was  intended  to  prevent  the  residence 
abroad  of  successive  generations  of  persons  claiming  the  privileges 
of  American  citizenship  while  evading  its  duties.-  It  seems  not  to  have 
been  judicially  determined  whether  the  residence  of  the  father  in 
the  United  States  must  necessarily  have  preceded  the  birth  of  the 
child,  but  by  the  fact  that  the  statute  provides  that  citizenship  shall 
not  "descend,"  it  is  believed  that  the  residence  prescribed  must  have 
preceded  the  birth  of  the  child,  and  such  has  been  the  construction 
of  the  Department.^ 

As  will  be  observed  more  fully  hereafter,'*  an  exception  to  the  ap- 
plication of  this  provision  of  §  1993  has  until  recently  been  made  in 
the  case  of  children  born  in  distinctively  American  communities  in 
Turkey,  in  which  citizenship  was  deemed  heritable  from  generation 
to  generation,  regardless  of  the  father's  non-residence  in  the  United 
States.  In  1914,  however,  the  Department  reversed  its  previous 
ruling  as  laid  down  since  1887,  and  held  §  1993  to  be  universally  ap- 
plicable, without  exception.^ 

§  271.  Election  of  Citizenship  under  §  6  of  Act  of  1907. 

According  to  §  6  of  the  Act  of  March  2,  1907,  foreign-born  children 
who  are  declared  citizens  by  §  1993  of  the  Revised  Statutes  are  ''re- 
quired upon  reaching  the  age  of  eighteen  years  to  record  at  an  Amer- 
ican consulate  their  intention  to  become  residents  and  remain  citizens 
of  the  United  States  and  ...  to  take  the  oath  of  allegiance  to  the 

» .Supra,  §  258. 
^  Van  Dyne,  op.  cit.,  34. 

'  See,  however,  State  v.  Adams,  45  Iowa,  99,  in  which  this  point  does  not  appear 
to  have  been  considered. 

*  Infra,  §  333. 

*  Special  Consular  Instruction,  No.  340,  Juh'  27,  1914,  Citizenship  of  children 
bom  of  American  fathers  who  have  never  resided  in  the  United  States. 


010  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

United  States  upon  attaining  their  majority."  ^  As  has  been  explained,^ 
the  Department  of  State  has  construed  the  word  "upon"  to  signify 
"within  a  reasonable  time  after,"  so  that  the  declaration  of  intention 
"  to  become  residents  and  remain  citizens  of  the  United  States"  may  be 
made  at  any  time  after  the  minors  concerned  have  reached  the  age 
of  eighteen  and  before  they  take  the  oath  of  allegiance;  ^  and  the  oath 
of  allegiance  may  be  taken  within  a  reasonable  time  after  reaching 
majority.  A  minor  over  eighteen,  therefore,  would  practically  be  en- 
titled to  a  passport  whenever  he  made  his  declaration;  and  even  for 
a  reasonable  time  after  majority,  if  he  is  then  prepared  also  to  take 
the  oath  of  allegiance. 

Notwithstanding  this  statutory  provision,  which  relates  merely 
to  the  right  of  protection,  municipal  courts  may  well  hold  such  persons 
to  be  citizens  of  the  United  States.  When  these  persons,  after  reaching 
the  age  of  majority,  continue  to  reside  abroad  and  have  no  definite 
intention  to  reside  in  the  United  States,  registration  and  passports 
are  uniformly  denied  them.^  Should  the  minor  have  returned  to  the 
United  States  to  reside,  and  subsequently,  after  majority,  goes  abroad, 
even  to  the  country  of  his  birth,  he  will  be  considered  as  having 
perfected  his  status  as  an  American  citizen,  and  as  having  full  title 
to  American  protection.^  In  one  case  where  a  circus  performer,  born 
abroad  of  an  American  citizen,  applied  for  a  passport  at  the  age  of 
twenty-nine,  but  stated  that  he  intended  to  come  to  the  United  States, 
the  Department  authorized  the  issuance  of  the  passport  on  the  ground 
that  he  had  the  animus  revertendi,  had  not  apparently  established 
himself  in  any  other  country,  and  that  his  pursuits  required  a  nomadic 
Iife.6 

1  Circular,  Children  of  citizens  born  abroad,  April  19,  1907,  For.  Rel.,  1907,  I,  9. 

2  Supra,  p.  587. 

^  Circular,  March  14,  1911.  This  interpretation  practically  nullifies  the  statutory 
requirement  of  recording  intention  prior  to  reaching  full  age,  but  does  not  entirely 
eliminate  the  inconsistency  with  numerous  rulings  of  the  Department  to  the  effect 
that  a  minor  is  incompetent  to  make  a  final  election  of  nationality. 

*  In  Albany  v.  Derby,  30  Vermont,  718,  the  court  declared  that  if  the  foreign- 
born  child  did  not  return  to  America  until  after  he  was  of  age,  he  was  an  alien. 

'  Crowninshield's  case,  Mr.  Gresham,  Sec'y  of  State,  to  Capt.  Crowninshield, 
Feb.  23,  1895,  For.  Rel.,  1895,  I,  426.    See  also  Moore's  Dig.  Ill,  284-285. 

•  Case  of  Clemens  Beling,  For.  Rel.,  1907,  975. 


CITIZENSHIP    BY   NATURALIZATION    OF   PARENT  GU 

§  272.  Citizenship  by  Naturalization  of  Parent. 

Citizenship  may  be  conferred  upon  a  minor  child  by  the  naturaliza- 
tion of  the  father,'  or  of  the  widowed  mother.^  While  a  mere  declara- 
tion of  intention  is  not  sufficient  thus  to  confer  citizenship,  it  will 
serve  this  purpose  if  the  father  dies  before  he  is  actually  naturalized.^ 

It  seems  clear  that  if  the  minor  is  resident  in  the  United  States, 
he  is  naturalized  by  the  father's  act.'*  There  was,  at  one  time,  some 
doubt  in  case  the  minor  was  non-resident.  In  this  case,  the  decisions 
of  the  courts  left  it  uncertain  whether  the  child  had  to  reside  in  the 
United  States  at  the  time  of  naturalization  or  whether  there  was  a  suffi- 
cient compliance  with  the  statute  by  his  coming  to  the  United  States 
during  minority.^  Again,  prior  to  the  Act  of  March  2,  1907,  it  seemed 
doubtful  whether  such  a  non-resident  minor  could  be  considered  a 
citizen  before  acquiring  a  residence  in  the  United  States.  Section  5 
of  the  Act  of  March  2,  1907  ®  now  provides  expressly  that 

"a  child  born  without  the  United  States  of  alien  parents  shall  be  deemed 
a  citizen  of  the  United  States  by  virtue  of  the  naturalization  of  or  re- 
sumption of  American  citizenship  by  the  parent:  Provided,  That  such 
naturalization  or  resumption  takes  place  during  the  minority  of  such 
child:  And  'provided  further,  That  the  citizenship  of  such  minor  child 
shall  begin  at  the  time  such  minor  child  begins  to  reside  permanently 
in  the  United  States." 

This  statutory  provision  confirmed  the  view  of  the  Department  and  the 
courts,  that  the  naturalization  of  an  alien  had  no  effect  upon  his  non- 
resident minor  child  who  did  not  enter  the  United  States  during  minority. 
Until  the  minor  child  of  a  naturalized  citizen  begins  to  reside  per- 

1  Section  2172,  R.  S.,  as  amended  by  §  5  of  the  Act  of  March  2,  1907;  10  Op.  Atty. 
Gen.  329.  The  American  decisions  on  this  matter  are  fully  discussed  in  H.  Doc.  326, 
59th  Cong.,  2nd  sess.,  33,  138-142;  Van  Dyne,  op.  cil.,  108-118;  Moore's  Dig.,  §  413. 

2  Brown  v.  Shilling,  9  Md.  74,  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  143-144.  The 
marriage  of  the  widowed  alien  mother  to  an  American  citizen,  confers  citizenship 
upon  her  and  thus  upon  the  minor  children  of  her  marriage.  Ibid.,  p.  144,  Moore's 
Dig.,  §  414. 

'  Act  of  June  29,  1906,  §  4,  ch.  6,  34  Stat.  L.  596,  embodies  the  provisions  of  R.  S., 
§  2168,  repealed.  In  re  Shearer,  148  Fed.  839.  The  declaration  of  intention  of  the 
stepfather  has  same  effect.  In  re  Robertson,  179  Fed.  131.  The  widow  and  children 
are  considered  citizens,  if  they  take  the  oaths  prescribed  by  law. 

*  Cases  cited  in  H.  Doc.  326,  59th  Cong.,  2nd  sees.,  34. 

6  Ibid.  34,  138-142. 

«  34  Stat.  L.  1229. 


612  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

manently  in  the  United  States,  he  is  an  aUen  and  subject  to  exclusion 
from  the  United  States  if  within  the  class  of  aliens  who  are  debarred 
from  entry  under  the  Immigration  Act,  nor  can  he  begin  to  reside 
permanently  until  he  has  been  allowed  to  enter.  ^  It  was  in  order  to 
remove  the  doubt  as  to  the  meaning  of  the  term  "if  dwelling  in  the 
United  States"  that  the  Act  of  1907  substituted  the  term  "begins 
to  reside  permanently  in  the  United  States."  The  Department  has 
ruled,  however,  that  even  though  the  minor  may  have  resided  in  the 
United  States  for  a  time  after  the  naturalization  of  the  parent  and 
before  his  majority,  nevertheless  if  he  goes  abroad  before  attaining 
his  majority  and  remains  there,  he  does  not  become  a  citizen.^ 

It  seems  beyond  doubt  that  citizenship  is  not  conferred  upon  an 
alien  child  by  his  adoption  by  an  American  citizen.^ 

§  273.  Illegitimate  Children. 

An  illegitimate  child  born  in  this  country  is  a  citizen.'*  If  borr 
abroad  to  an  American  mother  and  an  alien  father  it  seems  that  the 
child  would  not  be  an  American  citizen,  for  under  §  1993  of  the  Re- 
vised Statutes  citizenship  is  not  inherited  through  women.^  Nor 
if  the  father  is  an  American  does  §  1993  confer  citizenship  upon  his 
illegitimate  child,  for  an  illegitimate  child  is  filuis  nullius  and  pre- 
sumed to  have  no  father.®  Thus,  it  seems  clear  that  illegitimate  half- 
castes  born  in  semi-barbarous  countries  of  American  fathers  and  native 
women  are  not  American  citizens.^ 

A  more  difficult  question  arises  as  to  the  effect  of  legitimation  upon 

1  Nishimura  Ekiu  v.  U.  S.,  142  U.  S.  651;  Zartarian  v.  Billings,  204  U.  S.  170;  U.  S.  ex 
rel.  Abdoo  v.  Williams,  132  Fed.  894;  U.  S.  ex  rel.  De  Rienzo  v.  Rodgers,  185  Fed.  334. 

2  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Phelps,  Feb.  1,  1890,  For.  Rel.,  1890,  301; 
Sec'y  Blaine  to  Mr.  Smith,  Feb.  28,  1891,  Moore's  Dig.  Ill,  469;  Sec'y  Hay  to  Mr. 
Hardy,  quoted  by  Van  Dyne,  op.  cit.,  116. 

»  Moore's  Dig.  Ill,  §  415. 

*  As  a  general  rule,  illegitimate  children  also  take  the  nationality  of  the  mother, 
if  born  in  the  national  territory.  See  the  rules  followed  by  the  coiuitries  of  Latin- 
America  in  article  by  Arias  in  11  Journ.  of  the  Soc.  of  Comp.  Leg.  (1910),  132. 

6  Acosta  y  Foster  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2462.  It  is  possible, 
nowever,  that  the  foreign  country  of  birth  might  follow  the  general  principle  of  in- 
ternational law  of  ascribing  to  an  illegitimate  child  the  citizenship  of  its  mother. 

« Guyer  v.  Smith,  22  Md.  239;  Peck  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore'a 
Arb.  2257;  Hooper,  W.,  The  law  of  illegitimacy,  London,  1911,  100  et  seq. 

''  The  English  rule  appears  to  be  the  same,  Moore's  Dig.  Ill,  287. 


PARTNERS  613 

citizenship.  On  the  one  hand,  it  has  been  held  that  legitimation  re- 
moves the  defects  of  illegitimacy,  and  confers  American  citizenship 
upon  the  child  of  an  American  father  and  French  mother  who  married 
after  his  birth.  ^  On  the  other  hand,  there  is  some  authority  for  the 
view  that  legitimation  does  not  confer  British  nationality,^  and  this 
would  appear  to  be  the  better  opinion  under  the  American  law.  Under 
§  1993  citizenship  must  be  cast  at  birth.  If  the  child  is  then  not  a 
citizen,  he  must  be  an  alien,  and  any  subsequent  acquirement  of  citi- 
zenship must  be  through  some  form  of  naturalization.  Legitimation, 
of  course,  is  not  a  recognized  form  of  naturalization,  whence  it  would 
seem  that  the  subsequent  marriage  of  the  parents  cannot  relate  back 
to  the  moment  of  birth  and  make  the  child  at  the  time  of  birth  a  legiti- 
mate child  and  an  American  citizen. 

PARTNERS 

§  274.  American  Partners  Associated  with  Aliens. 

Owing  to  the  conception  of  the  severabiUty  of  the  interests  of  part- 
ners in  partnership  property,  there  seems  to  have  been  little  difficulty, 
on  the  part  of  the  Executive,  in  appeals  for  protection,  and  on  the 
part  of  tribunals,  in  the  adjudication  of  claims,  in  protecting  the  un- 
divided interest  of  a  partner,  an  American  citizen,  in  a  partnership 
claim  in  which  his  associates,  for  lack  of  citizenship  or  other  reason, 
had  no  title  to  legal  protection. 

Cases  have  not  been  infrequent  where  the  American  partner  in  a 
firm  in  which  other  partners  are  foreigners  has  invoked  American 
protection  for  the  partnership  property  abroad.  In  such  cases  it  has 
been  held  by  the  Executive  that  the  right  of  protection  is  personal 
and  not  transferable,  and  that  the  citizen  cannot,  by  connecting  him- 
self in  business  with  the  nationals  of  another  country,  spread  over 

1  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Lardy,  August  23,  1901,  For.  Rel.,  1901,  512. 
See  also  Dale  v.  Irwia,  78  111.  170,  a  decision  not  well  considered,  H.  Doc.  326,  59th 
Cong.,  2nd  sess.,  142.  The  civil  effects  of  legitimation  are  governed  by  the  laws  of 
the  various  states  of  the  Union. 

-  Shedden  v.  Patrick,  1  McQueen  H.  L.  535;  Hooi>er,  op.  cit.,  225.  Under  German 
law  and  the  law  of  several  other  countries,  e.  g.,  Austria,  Switzerland,  Finland,  and 
Costa  Rica,  it  is  expressly  provided  that  the  marriage  of  an  alien  father  to  the  na- 
tional mother  of  an  Ulegitimate  child,  the  child  being  thereby  legitimated,  confers 
the  father's  nationality  upon  the  child. 


614  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

them  the  mantle  of  his  own  government,  or  enable  them  to  invoke 
its  protection.  In  a  proper  ease,  indemnity  may  be  demanded  for  the 
injury  to  the  American  citizen,  and  the  measure  of  indemnity  would 
be  the  extent  of  the  interest  of  the  citizen  in  the  partnership  property, 

§  275.  Decisions  of  International  Tribunals  of  Arbitration. 

International  tribunals  have  on  many  occasions  permitted  one 
of  several  partners  to  recover  for  his  undivided  interest  in  partnership 
property,  where  it  clearly  appeared  that  the  other  partner  or  partners 
labored  under  a  disability  depriving  him  or  them  of  standing  before 
the  commission,  and  this,  notwithstanding  the  general  rule  that  claims 
in  favor  of  a  partnership  must  be  prosecuted  by  all  the  partners.^ 
Thus,  the  citizen  partners  in  a  firm  consisting  partly  of  nationals  and 
partly  of  aliens  have  been  allowed  by  arbitral  courts  to  recover  their 
pro  rata  share  of  partnership  claims. - 

In  several  cases  in  which  proof  of  loyalty  or  neutrality  operated 
as  a  condition  precedent  to  recovery,  and  such  proof  failed  on  the 
part  of  one  or  more  of  several  partners,  the  decisions  have  not  been 
uniform  as  to  whether  the  innocent  partners  could  recover  their  pro- 
portionate share  of  partnership  claims.  In  a  number  of  cases,  thr 
court  acted  on  the  presumption  that  the  disloyal  acts  of  one  partner 
are  imputable  to  the  others,  so  as  to  bar  recovery  on  a  partnership 
claim.^    In  other  cases,  the  innocent  partner  was  awarded  his  pro  rata 

^  The  rule  has  been  applied  by  the  Court  of  Claims  to  joint  owners  having  several 
interests.    Fain  v.  U.  S.,  4  Ct.  CI.  237,  239. 

splumer,  Adm.  (U.  S.)  v.  Mexico,  March  3,  1849,  Opin.  182  (not  in  Moore);  Ho- 
man  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  3409  (partner  suing  alone  held 
entitled  to  pro  rata  share  only,  although  other  partner  may  be  equally  entitled  if 
he  appears  as  claimant);  Jennings  et  al.  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's 
Arb.  3135  {dictum);  Iluden  (U.  S.)  v.  Peru,  Dec.  4,  1868,  ibid.  1654;  Massardo  el  al. 
(Italy)  V.  Venezuela,  Feb.  13,  1903,  Ralston,  706,  709;  Poggioli  (Italy)  v.  Venezuela, 
ibid.  847,  871;  Baasch  and  Romer  (Netherlands)?;.  Venezuela,  Feb.  28,  1903,  Ral- 
ston, 906,  910;  Henriquez  (Netherlands)  v.  Venezuela,  ibid.  911  (no  proof  of  interest 
of  Dutch  members  of  firm);  Peters  (Gt.  Brit,  and  Germany)  v.  Haiti,  1913.  See 
also  Hosford  v.  U.  S.,  29  Ct.  CI.  42  (suit  under  Indian  Depredation  Act  of  1891).  A 
Gennan  assignor  for  the  benefit  of  creditors  of  a  firm  in  which  one  partner  was  a 
Dane  was  nevertheless  permitted  to  prosecute  a  partnership  claim,  inasmuch  as  he 
had  the  legal  title.  Christcrn  and  Co.,  liquidators  (Germany),  v.  Venezuela,  Feb.  13, 
May  7,  1903,  Ralston,  597. 

'  Schreiner  v.  U.  S.,  6  Ct.  CI.  360,  Nott,  J.,  dissenting,   (one  disloyal  partner, 


ii. 


DECISIONS    OF    INTERNATIONAL   TRIBUNALS   OF   ARBITRATION       615 

share  of  the  claim,  his  right  being  considered  unimpaired  by  the  dis- 
loyalty and  disability  to  sue  of  his  associate.^ 

Attention  has  already  been  called  to  the  rule  of  Anglo-American 
prize  law  which  renders  subject  to  confiscation  the  share  of  a  partner 
in  a  commercial  house  established  in  a  neutral  country,  when  his  own 
domicil  is  in  enemy  territory,^  and  operates  to  the  same  effect  when 
the  house  is  established  in  enemy  territory,  whatever  may  be  the 
personal  domicil  of  the  partners.^  But  the  taint  of  belligerent  domicil 
of  a  commercial  partnership,  does  not  reach  the  separate  property 
of  a  partner  having  a  neutral  domicil.'* 

There  is  a  certain  type  of  partnership,  the  association  en  nom  col- 
ledif  or  en  commandite  simple,  which  in  civil  law  countries  is  regarded 
as  a  juristic  person  and  a  legal  entity,  separate  and  distinct  from  the 
individual  members  composing  it,^  and  possessing  the  nationality 
of  the  country  of  its  organization  or  domicil.     Civil  law  countries  in 

and  two  neutral  alien  partners,  suing  under  Abandoned  or  Captured  Property  Act 
of  March  12, 1863;  the  decisions  in  the  Levois  and  Rochereau  cases,  infra,  are  squarely- 
opposed);  Hargous  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  1280-1283; 
Lafler  and  Walley  (U.  S.)  v.  Mexico,  ibid.  3340,  3342  (semble);  McStea  v.  U.  S.,  Second 
Alabama  Claims  Court,  ibid.  2380;  dictum  (had  it  been  a  partnership  transaction) 
in  Levois  v.  U.  S.,  Act  of  June  23,  1874,  distributing  Alabama  award,  ibid.  2357. 
1  U.  S.  V.  Bums,  12  Wall.  246,  253  (under  Act  of  March  3,  1863);  Finn  v.  U.  S., 

4  Ct.  CI.  237,  239;  Meldrim  and  Doyle  v.  U.  S.,  7  Ct.  CI.  595  (joint  owners  with 
several  interests) ;  Levois  v.  U.  S.,  Act  of  June  23, 1874,  Moore's  Arb.  2352,  2357  (proof 
that  claim  did  not  arise  out  of  partnership  transaction,  and  claimant  not  responsible 
for  partner's  acts);  Rochereau  (France)  v.  U.  S.,  Jan.  15,  1880,  Boutwell's  Rep.  124, 
Moore's  Arb.  3739  (proof  that  claimant,  non-resident  alien,  had  no  knowledge 
of  purchase  of  certain  Confederate  bonds,  bearing  certain  indicia  of  unneutral  aid, 
by  his  partners  in  New  Orleans). 

^  Supra,  p.  559,  especially  Dana's  Wheaton,  §  535;  Duer,  Marine  insurance,  §  45; 
The  Antonia  Johanna  (1816),  1  Wheat.  159. 

3  The  Friendschaft,  4  Wheat.  105;  The  Cheshire,  3  Wall.  231;  The  William  Bagaley, 

5  Wall.  377.  See  also  treaty  of  April  30,  1803  between  the  U.  S.  and  France,  art.  5. 
Malloy,  I,  514,  cited  by  Andrade,  Commissioner,  in  Finn  (U.  S.)  v.  Venezuela,  Dec.  5, 
1885,  Moore's  Arb.  2349  {dictum).  In  Rodocanochi  Sons  and  Co.  v.  U.  S.,  Act  of  June 
23,  1874,  ibid.  2359,  the  nationality  of  a  firm  was  considered  that  of  the  locus  of  its 
main  house.  Duer  (I,  526),  mentions  an  exception  to  the  right  of  capture  when 
the  shipment  from  the  hostile  house  of  trade  is  made  at  the  commencement  of  the 
war,  and  the  partner  is  domiciled  in  neutral  territory-. 

*The  San  Jose  Indiana,  2  Gall.  268;  The  Sally  Magee,  Blatch.  Pr.  Cas.  283;  The 
Aigburth,  ibid.  635. 

*  This  is  in  fact  in  accord  with  the  old  law  of  merchants. 


616  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

which  such  firms  have  established  themselves  have  usually  denied 
the  severability  of  the  interests  of  the  partners  composing  the  firm, 
yet  international  commissions  have  in  most  cases  admitted  the  sepa- 
rate claims  of  the  individual  partners  for  their  undivided  pro  rata 
shares  of  the  partnership  property.^ 

While  a  presumption  is  sometimes  exercised  that  partners  own 
equal  shares,^  claims  commissions  usually  require  a  claimant  partner 
to  show  the  extent  of  his  interest  in  the  partnership.^ 

§  276.  Surviving  Partners. 

The  principle  of  the  common  law  "*  which  invests  the  surviving 
partner  of  a  firm  with  the  right  to  collect  the  debts  of  the  firm  has 
been  applied  in  a  number  of  cases  before  domestic  and  international 
courts.^  The  rule,  however,  was  considered  without  application  to 
the  claim  of  a  British  subject,  appearing,  before  a  commission  having 
jurisdiction  of  claims  of  American  citizens,  as  the  surviving  partner 
of  a  firm  composed  of  an  American  citizen  and  a  British  subject,  the 
tribunal  stating  that  the  i-ights  of  the  American  citizen,  who  alone 
was  entitled  to  an  award,  passed  to  his  personal  representative  and 
not  to  his  surviving  alien  partner.^ 


1  Ruden  (U.  S.)  v.  Peru,  Dec.  4,  1868,  Moore's  Arb.  1653;  Cerruti  (Italy)  v.  Colom- 
bia, Aug.  18,  1894,  For.  Rel.,  1898,  245,  Moore's  Arb.  2117;  Alsop  and  Co.  (U.  S.) 
V.  Chile,  Dec.  1,  1909,  Award  July  5,  1911,  5  A.  J.  I.  L.  1079. 

The  entity  was  regarded  as  inseparable  in  Chauncey  (U.  S.)  v.  Chile,  No.  4,  May  24, 
1897,  Report,  1901,  p.  22;  see  dissenting  opinion  by  American  commissioner.  The 
subsequent  Alsop  protocol  and  award  (supra)  practically  reverses  this  decision. 
Brewer,  MoUer  and  Co.  (Germany)  v.  Venezuela,  Feb.  13,  May  7,  1903,  Ralston,  595. 

2  As  to  joint  owners,  see  The  Schooner  Nanlasket,  39  Ct.  CI.  119. 

3  Henriquez  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  Ralston,  911;  Finn  (U.  S.) 
V.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  2348;  Headman  v.  U.  S.,  5  Ct.  CI.  604. 

^  Burdick,  F.  M.,  The  law  of  partnership,  2nd  ed.,  Boston,  1906,  139  el  seq. 

6  Douglas  V.  U.  S.,  14  Ct.  CI.  1;  Labadie,  Adm.,  v.  U.  S.,  33  Ct.  CI.  476;  Stewart, 
Adm.,  V.  U.  S.  (French  spoliations),  27  Ct.  CI.  221  (notwithstanding  fact  that  sur- 
viving partner  was  not  a  member  of  firm  when  the  loss  occurred);  Garrison  (U.  S.)  v. 
Mexico,  July  4,  1868,  Moore's  Arb.  1356,  3129  (Award  by  Lieber,  Umpire,  to  Ameri- 
f-an  citizen,  when  no  evidence  introduced  to  show  deceased  partner  was  not  an  Ameri- 
can citizen);  Levois  v.  U.  S.,  Act  of  June  23,  1874,  Moore's  Arb.  2358. 

•>  Mon-ison,  surviving  partner  of  Plumer  and  Morrison  (U.  S.)  v.  Mexico,  March  3, 
1849,  ibvl.  2326  (last  part  dictum). 


CORPORATIONS  017 

CORPORATIONS 

§  277.  Citizenship  of  Corporations. 

The  nationality  of  corporations  is  one  of  the  most  actively  discussed 
questions  of  the  law  of  continental  Europe.^  While  some  writers  dis- 
pute the  possibility  of  corporate  nationality,  the  fact  that  the  legis- 
lation of  practically  all  countries  takes  account  of  foreign  corporations, 
has  persuaded  publicists  to  endeavor  to  establish  the  criteria  of  a 
national  corporation.  In  some  countries,  little  help  is  obtained  from 
positive  legislation. 

A  corporation  may  be  attached  to  a  territory  by  three  elements. 
The  first  is  the  place  where  it  is  created  or  founded,  where  the  legal 
formalities  of  its  constitution,  authorization  and  inscription  have  been 
carried  out.  The  second  is  the  place  where  the  home  office,  the  active 
management  or  center  of  administration,  or  what  the  French  call  the 
siege  social  is  located.  The  third  is  the  place  where  it  carries  on  the 
purpose  of  its  organization,  its  actual  operations,  its  center  of  exploita- 
tion {principale  exploitation).^ 

When  these  three  elements  are  combined  in  one  country,  it  is  hardly, 
open  to  question  that  the  corporation  has  the  nationality  of  that  coun- 
try.^   But  when  the  three  elements  or  some  of  them  are  located  in 

^  Mamelok,  A.,  Die  juristische  Person  im  internationalen  Privatrecht,  Zurich, 
1900,  211  et  seq.;  Pillet,  A.,  Des  personnes  morales  en  droit  international  prive,  Paris, 
1914;  Isay,  Ernst,  Die  Staatsangehorigkeit  der  juristischen  Personen,  Tubingen, 
1907;  Leven,  M.,  De  la  nationalite  des  societes  et  ses  effets  juridiques,  Paris,  1900, 
199  et  seq.;  Fromageot,  H.,  De  la  double  nationalite  des  individus  et  des  societes, 
Paris,  1892,  114-121;  Lyon-Caen  in  12  Clunet  (1885),  265-274;  Laine  in  20  Clunet 
(1893),  273  et  seq.;  Arminjon  in  4  R.  D.  I.,  n.  s.  (1902),  381  et  seq.;  translated  into 
English  by  William  E.  Spear,  Clerk,  Spanish  Treaty  Claims  Com.,  Washington, 
1907,  Document  53;  Marais  and  Barclay  in  23rd  Report,  International  Law  Asso. 
(1906),  360-372;  Jacobi  in  27th  Rep.  ibid.  368-380,  Baumgarten  in  28th  Rep.,  ibid. 
246-254  and  D.  J.  Trias  y  Giro,  28th  Rep.  ibid..  270  et  seq.  1889  and  1900  Congres 
international  des  societes  par  actions,  Paris,  1889  and  1900.  See  also  the  general 
works  on  private  international  law  by  Bar,  Fiore,  Weiss,  Vareilles-Sommieres, 
Brocher,  Surville  and  Arthuys,  Asser-Rivier,  Despagnet  and  Rolin,  and  the  French 
treatises  on  commercial  law  by  Thaller,  Lyon-Caen  and  Renault,  Houpin  and  Rous- 
seau. 

^  Jitta,  J.,  La  substance  des  obligations  dans  le  droit  international  prive,  La  Haye, 
1906,  I,  343  et  seq. 

3  Driefontein  Cons.  Gold  Co.  v.  Janson  (1900),  2  Q.  B.  339,  346,  S.  C.  [1902],  A.  C 
484,  490;  Foote,  Foreign  and  domestic  law,  3rd  ed.,  144. 


618  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

different  countries,  the  nationality  of  the  corporation  is  not  always 
easy  to  determine.  Taking  into  consideration  the  three  factors  men- 
tioned and  some  others,  the  following  systems  as  to  the  determinative 
criterion  of  the  nationality  of  a  corporation  have  all  had  their  adherents: 
It  is  governed  (1)  by  the  nationality  of  the  state  which  authorizes 
its  existence  (Fiore  and  Weiss);  (2)  by  that  of  the  state  within  whose 
jurisdiction  it  has  been  organized  (Brunard  and  Cassano);  (3)  by 
the  nationality  of  the  stockholders  (Vareilles-Sommieres) ;  (4)  by 
that  of  the  country  of  subscription  or  domicil  of  the  majority  of  the 
stockholders  at  the  time  of  subscription  (Thaller);  (5)  by  that  of 
the  country  where  it  has  its  principal  place  of  business,  a  system  fol- 
lowed, with  variations,  by  the  legislation  of  most  countries;  (6)  the 
jurisdictional  judge  may  determine  the  nationality  on  all  the  facts.* 
Other  solutions  have  been  offered,  e.  g.,  that  the  will  of  the  corporation 
or  of  the  state  should  alone  determine  its  nationality. 

Leaving  aside  all  theoretical  arguments,  it  may  be  said  that  the 
majority  of  states  in  their  legislation  have  accepted  the  country  of 
domicil  (siege,  Sitz)  as  the  nationality  of  the  corporation.  The  ques- 
tion then  arises,  is  the  domicil  the  center  of  administration,  the  "home 
office,"  or  is  it  the  center  of  exploitation,  where  the  business  is  carried 
on.  Among  the  countries  of  Europe — with  the  exception  of  Spain, 
which  attributes  Spanish  nationality  to  corporations  incorporated 
in  Spain  or  administered  from,  or  doing  business  in  Spain,  and  of  Italy, 
Portugal  and  Roumania,  which  consider  as  domestic  corporations  those 
doing  business  within  their  borders  (center  of  exploitation)^ — the 
majority  adhere  to  the  system  by  which  nationality  follows  the  country 
in  which  the  center  of  administration  (the  siege  social)  is  located.* 

^  Arminjon  in  Spear's  translation,  supra,  8-18. 

2  This  principle  appears  to  be  favored  by  Lyon-Caen,  Boistel,  Asser  and  Rivier. 
Fromageot,  op.  cit.,  p.  118.  See  also  Lyon-Caen  and  Renault,  op.  cit.,  II  (Des  so- 
cietes),  4tli  ed.,  §  1167,  p.  577. 

'  This  is  the  system  approved  by  the  Institute  of  International  Law,  with  the 
quahfication  that  the  siege  social  be  real  and  actual,  and  not  fictitious  and  fraudulent 
(11  Annuaire,  151  et  seq.;  see  also  9  Annuaire,  376  and  10  Annuaire,  153-156)  and 
by  the  Congress  of  Corporations  at  its  1889  Paris  session.  See  also  Diena,  G.,  Trat- 
tato  di  diritto  commerciale  internazionale,  Firenze,  1900,  I,  §  37,  and  the  decisions 
of  French  courts  cited  by  Boeck  in  20  R.  G.  D.  I.  P.  (1913),  352.  The  International 
Law  Asso.  has  expressed  itself  to  the  effect  that  the  domicil  of  a  foreign  corporation 


ANGLO-AMERICAN   LAW  619 

§  278.  Anglo-American  Law. 

In  Anglo-American  law  no  such  theoretical  conflicts  as  have  pre- 
vailed in  continental  law  appear  to  have  found  a  place.  The  concep- 
tion of  domicil  with  respect  to  corporations  has  been  applied  in  cases 
of  taxation  and  of  belligerent  rights  and  for  these  purposes,  the  seat 
of  the  corporation  has  on  occasion  been  considered  the  place  where 
the  business  is  carried  on.^  For  other  purposes,  the  question  of  domicil 
and  nationality  is  decided  by  practical  considerations,  the  most  im- 
portant of  which  is  the  place  of  incorporation. 

In  the  United  States  the  citizenship  of  corporations  is  judged  al- 
most exclusively  according  to  the  place  of  incorporation,  which  involves, 
in  most  municipal  cases,  the  determination  of  state  citizenship.  Only 
thirteen  states  even  require  residence  on  the  part  of  any  of  the  incor- 
porators and  only  six  require  state  citizenship.  New  York  appears 
to  be  the  only  state  demanding  United  States  citizenship.  While 
the  courts  have  made  numerous  distinctions  between  natural  persons 
and  corporations  in  the  matter  of  citizenship,  they  have  held  a  corpora- 
tion to  be  a  citizen  for  the  purposes  of  suit  under  the  federal  consti- 
tution,^ and  under  the  Act  to  provide  for  the  adjudication  and  pay- 
ment  of   claims   arising   from   Indian   depredations.'     The   Supreme 

shall  be  deemed  the  place  of  its  incorporation,  22nd  Report  (1905),  p.  250.  This 
substitution  of  place  of  incorporation  for  swge  social  was  also  recommended  by 
Judge  Neukampf  in  the  Verhandlungen  der  ersten  Hauptversammlung  der  Int. 
Ver.  f.  vergl.,  Rechtswissenschaft  at  Heidelberg,  Sept.,  1911,  BerUn,  1912,  203-226 
and  discussion  227-232. 

The  legislative  system  of  the  various  countries  is  outlined  in  Isay,  op.  cit.,  214r-224, 
and  is  discussed  in  the  other  works  cited  in  note  1  {sui)ra,  p.  617). 

See  the  award  of  the  Hague  Court  of  Arbitration  in  Canevaro  (Italy)  v.  Peru, 
April  25,  1910,  6  A.  J.  I.  L.  (1912),  746,  and  Boeck  in  20  R.  G.  D.  I.  P.  (1913),  349 
et  seq. 

1  Foote,  op.  cit.,  3rd  ed.,  143;  Martine  v.  Int.  Life  Ins.  Soc,  53  N.  Y.  339  (a  British 
insurance  company  with  a  permanent  agency  in  New  York  and  doing  business  there, 
was  considered  domiciled  in  New  York,  for  belligerent  purposes).  Recent  decisions 
in  Great  Britain  have  confirmed  the  rule  that  for  purposes  of  suit  the  nationality  of 
a  corporation  is  that  of  the  place  of  incorporation,  regardless  of  the  nationality  of 
the  stockholders.  Continental  Tyre  and  Rubber  Co.  v.  Daimler  [1915],  1  K.  B.  893 
(alien  enemy  stockholders  in  British  corporation).  See  criticism  by  J.  E.  Hogg  in 
31  Law  Quar.  Rev.  (1915).  170-172. 

2  Muller  V.  Dows,  94  U.  S.  444. 

»  United  States  v.  Northwestern  Express  Co.,  164  U.  S.  686  (Act  of  March  3,  1891). 


620  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

Court,  moreover,  has  held  that  for  jurisdictional  purposes  there  is  a 
conclusive  presumption  of  law  that  the  persons  composing  the  corpora- 
tion are  citizens  of  the  same  state  with  the  corporation,*  and  "although 
an  artificial  person,"  a  corporation  is  "to  be  considered  as  a  citizen 
of  the  state  as  much  as  a  natural  person." 

While  it  has  been  held  that  a  corporation  could  be  an  alien  enemy 
as  well  as  an  individual,  it  has  not  been  definitely  estabUshed  whether 
the  place  of  incorporation  governs  enemy  character,  or  whether  this 
is  determined  according  to  each  place  where  the  corporation  has  a 
branch  and  does  business.  In  earlier  cases,  the  place  of  actual  business 
has  been  held  to  control;^  more  recently,  however,  it  has  been  held 
in  England  that  the  place  of  incorporation  and  registration,  and  not 
the  place  of  operation  governs.^  The  British  proclamation  of  Sep- 
tember 9,  1914,  in  regard  to  trading  with  the  enemy,  provides  that  in 
the  case  of  incorporated  bodies,  enemy  character  attaches  only  to 
those  incorporated  in  an  enemy  country.  On  the  other  hand,  for  the 
purposes  of  the  effect  of  war  on  patents,  designs  and  trade- marks,  a 
British  corporation  controlled  by  or  carried  on  wholly  or  mainly  for  the 
benefit  of  subjects  of  an  enemy  state,  was  to  be  deemed  an  alien  enemy. 

§  279.  Diplomatic  Protection  of  American  Corporations.    Conditions. 

In  the  matter  of  diplomatic  protection,  the  United  States  ^  and 
Great  Britain  ^  have  considered  themselves  entitled  to  interpose  in 
behalf  of  a  corporation  incorporated  under  its  laws  or  those  of  a  con- 
stituent state,  on  the  theory  that  the  company  is  clothed  with  the 

*  Louisville,  etc.,  Railroad  v.  Letson,  2  How.  497,  558;  St.  Louis  and  San  Francisco 
Ry.  Co.  V.  James,  IGl  U.  S.  545,  562. 

2  Marline  v.  Int.  Life  Ins.  Soc,  53  N.  Y.  339. 

8  Nigel  Gold  Mining  Co.  v.  Hoade,  70  L.  J.,  K.  B.  1006  [1901],  2  K.  B.  849.  The 
note  in  15  Harvard  Law  Rev.  237  on  this  case  is  most  confusing.  Continental  Tyre 
and  Rubber  Co.  v.  Daimler  [1915],  1  K.  B.  893.  In  support  of  the  place  of  incorpora- 
tion as  the  test  see  the  Pedro  and  the  Guido,  175  U.  S.  354  and  382;  Robinson  Gold 
Min.  Co.  V.  Alliance  Ins.  Co.  [1901],  2  K.  B.  919,  and  the  following  prize  cases:  The 
Manchuria,  Russian  and  Japanese  Prize  Cases,  II,  52;  The  Toiinui,  L.  K.  [1914], 
Probate,  251;  The  Roumanian,  L.  R.  [1915],  Probate,  26.  See  also  Russell  T.  Mount 
in  15  Columbia  L.  Rev.  (1915),  332-333. 

*  Moore's  Dig.  VI,  §  984.  Mr.  Knox,  Sec'yof  State,  to  Mr.  Arnold,  Apr.  25,  1910, 
For.  Rel.,  1910,  197. 

*  Lord  Palmerston  to  Mr.  Drouey,  President  of  the  Swiss  Confederation,  Octo- 
ber 16,  1859,  reprinted  in  For.  Rel.,  1873,  II,  1348. 


DIPLOMATIC    PROTECTION    OF   AMERICAN   CORPORATIONS  621 

nationality  of  its  creator,  regardless  of  the  citizenship  of  the  bond- 
holders or  stockholders.*  General  claims  conventions  concluded  by 
the  United  States  usually  provide  for  the  adjudication  of  "all  claims 
on  the  part  of  corporations,  companies  or  private  individuals,  citizens 
of  the  United  States,"  or  the  other  claimant  government.  Even  where 
the  protocol  was  confined  to  "citizens"  or  "subjects,"  it  has  been  held 
by  arbitral  commissions  to  include  corporations  duly  organized  under 
the  laws  of  the  claimant  government.- 

While  American  incorporation,  therefore,  affords  a  prima  facie  title 
to  American  protection,  no  hard  and  fast  rules  governing  protection 
can  be  laid  down.  The  Department  of  State,  in  the  exercise  of  its 
discretion,  requires  evidence  of  the  substantial  American  interest 
in  a  corporation  before  protection  is  authorized.  Thus  the  Depart- 
ment uniformly  requires  the  party  in  interest  to  place  on  file  a  properly 
certified  copy  of  the  charter  or  articles  of  incorporation,  together 
with  a  duly  executed  instrument  setting  forth  the  ownership — legal 
or  equitable — of  the  stock  and  bonds  of  the  corporation,  including 
such  a  statement  of  the  nationality  of  the  holders  as  will  show  in  whom 
the  greater  part  of  the  real  beneficial  interest  lies.  Complete  Amer- 
ican ownership  of  the  stock  or  bonds  is  by  no  means  required.  When 
there  is  reason  to  believe  that  American  incorporation  was  sought 
merely  for  the  purpose  of  securing  American  protection  for  what  is 
in  fact  a  foreign-owned  enterprise,  the  Department  is  loath  to  extend 
its  protection  to  the  corporate  entity.  Such  protection  has  been  re- 
fused in  cases  where  the  incorporators  were  all  aliens  or  where  the  major- 
ity of  the  stock  was  owned  by  nationals  of  the  country  against  which 
protection  was  sought,  or  where  the  corporation  has  not  been  considered 
to  represent  sufficient  American  interests.^    In  a  case  where  four-fifths 

1  Chauncey  (U.  S.)  v.  Chile,  Case  No.  4,  May  24,  1897,  U.  S.  and  Chilean  Comm. 
Rep.,  1901,  22;  For.  Rel.  1910,  197. 

^Stirling  (Gt.  Brit.)  v.  Chile,  No.  4,  Sept.  26,  1893,  Reclamaciones  pres.  al  Trib. 
Anglo-Cliileno,  I,  128,  152,  dissenting  opinion  by  Commissioner  Aldunate,  ibid.  163- 
187;  Rosario  Nitrate  Co.,  Ltd.  (Gt.  Brit.),  v.  Chile,  ibid.  I,  30(),  338;  Comp.  Consig. 
du  Guano  (France)  v.  Chile,  Award  July  5,  1901,  Descamps  and  Renault,  Rec.  int. 
des  traites,  1901,  p.  367.  See  also  U.  S.  v.  Northwestern  Express  Co.,  164  U.  S.  686; 
Dictum  contra  by  Deemer,  J.,  in  Scottish  U.  and  N.  Co.  v.  Herriott  (1899),  109  Iowa, 
606,  617. 

» Mr.  Adee  to  Consul  Bergholz,  Oct.  12,   1909,  For.   Rel.,   1909,  67.    See  also 


622  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

of  the  American-owned  stock  in  an  American  corporation  had,  after 
the  origin  of  the  claim,  passed  into  foreign  hands,  it  was  considered 
within  the  discretion  of  the  Secretary  of  State  to  divide  the  claim  and 
prosecute  to  satisfactory  adjustment  only  the  bona  fide  American 
interest  in  the  claim. 

Again,  while  a  duly  organized  American  corporation  is  subject  to 
American  consular  jurisdiction  in  China  and  is  entitled  to  registra- 
tion as  such,  this  does  not  necessarily  imply  that  the  corporation  is 
entitled  to  the  diplomatic  protection  of  the  United  States,^ 

§  280.  Foreign  Corporation  Substantially  Owned  by  American  Citizens. 

In  the  obverse  case,  a  foreign  corporation  will  not  be  denied  pro- 
tection, if  a  substantial  interest  in  the  corporation  is  owned  by  Amer- 
ican citizens.  Here  again,  it  is  impossible  to  lay  down  a  rule  as  to 
the  proportion  of  stock  which  must  be  owned  by  American  citizens. 
The  Department  in  the  exercise  of  its  discretion  will  look  behind  the 
corporate  entity  to  determine  the  nationality  of  the  real  parties  in 
interest.  While  there  are  many  reasons  in  legal  theory  for  declining 
to  protect  an  American  stockholder  in  a  foreign  corporation,  so  long 
as  the  corporation  is  a  going  concern — and  the  United  States  has,  at 
times,  on  palpably  valid  legal  grounds  declined  its  protection  in  such 
cases, '^ — the  government  has  on  numerous  occasions  intervened  on 
behalf  of  foreign  corporations  when  it  appeared  that  a  substantial 
proportion  of  the  stock  was  owned  by  American  citizens.^  In  this 
practice,  it  has  apparently  been  sustained  by  arbitral  decisions.'* 

In  the  case  of  a  large  American  stock-holding  interest  in  a  foreign 
corporation  doing  business  in  a  third  country,  the  Department  has 

ibid.  65.  See  also  Leval,  G.  de,  La  protection  diplomatique,  Bruxelles,  1907, 
§§  40-41. 

'  Mr.  Knox,  Sec'y  of  State,  to  Consul  Arnold,  Apr.  25,  1910,  For.  Rel.,  1910,  198. 

^  E.  g.,  in  the  celebrated  Antioquia  case,  Moore's  Dig.  VI,  644-646. 

'See  casea  in  Moore's  Dig.  Ill,  647-651;  Orinoco  S.  S.  Co.  (U.  S.)  v.  Venezuela, 
Sen.  Doc.  413,  60th  Cong.,  1st  sess.,  71. 

*  In  McMurdo  v.  Portugal,  June  13,  1891,  Moore's  Arb.  1865  ei  seq.,  For  Rel., 
1900,  903;  in  El  Triunfo  (Salvador  Commercial  Co.)  v.  Salvador,  Dec.  19,  1901, 
For.  Rel.,  1902,  862-873  and  in  Alsop  v.  Chile,  Dec.  1,  1909,  Award  July  5,  1911,  p.  9. 
The  protocol  maj^  be  considered  an  authorization  for  these  decisions.  See  von  Bar's 
comments  in  his  opinion  on  the  Salvador  Commercial  Co.  case  published  in  45 
Jhering's  Jahrbucher  (1903),  161,  192. 


RULE   OF    INTERNATIONAL   TRIBUNALS  623 

occasionally  instructed  the  American  minister  in  the  third  country 
to  use  his  informal  good  offices  on  behalf  of  the  American  interest 
by  supporting  the  representations  of  the  diplomatic  representative 
of  the  country  in  which  the  company  had  been  incorporated.  Good 
offices  are  in  fact  frequently  employed  directly  against  a  foreign  gov- 
ernment, the  incorporator  of  a  company  in  which  an  American  citizen 
is  a  substantial  stockholder.^  Protection  has  been  refused  as  against 
such  a  government  when  three-fourths  of  the  stock  appeared  to  be 
owned  by  citizens  of  that  government.  Protection  has  also  been  re- 
fused to  an  American  corporation,  owning  the  bulk  of  the  stock  of 
a  Mexican  corporation,  in  the  interest  of  a  vessel  of  the  Mexican  cor- 
poration flying  the  Mexican  flag. 

§  281.  Rule  of  International  Tribunals. 

International  tribunals  which  have  passed  upon  the  matter  have 
held  in  many  cases  that  the  nationality  of  the  corporation  and  not  of 
its  stockholders  governs  the  jurisdiction  of  the  commission.^  On 
the  other  hand,  citizens  of  the  claimant  government,  stockholders 
in  ^  or  representing  as  liquidator  ^  a  solvent  corporation  formed  under 

^  Good  offices  have  been  employed  on  behalf  of  subsidiaries  of  great  American 
corporations,  the  subsidiaries  being  incorporated  and  domiciled  in  foreign  countries. 
See  also  27th  Rep.  Int.  Law  Asso.  (1912),  379,  paper  of  Mr.  Jacobi. 

-  Comp.  Gen.  des  Eaux  (Belgium)  v.  Venezuela,  March  7,  1903,  Ralston,  271,  276; 
Narcisa  Sugar  Co.  v.  U.  S.,  No.  139,  Span.  Tr.  CI.  Com.,  Briefs  and  Explanatory 
notes,  V.  XXIV,  167. 

'  In  two  cases  coming  before  a  Commission  to  consider  the  claims  of  "British  sub- 
jects" upon  France,  it  was  held  that  a  corporation  organized  by  British  subjects  in 
France,  and  under  the  control  of  France,  was  a  "French  establishment"  and  not 
within  the  meaning  of  the  term  "British  subjects."  Daniel  v.  Commissioners  for 
Claims  on  France,  2  Knapp's  P.  C.  Rep.  23,  and  Long  v.  Commissioners,  2  ihid.  51. 
In  the  first  case,  the  corporation  was  formed  for  objects  not  permitted  by  British 
law,  although  this  did  not  affect  the  legal  point  above  mentioned.  Nor  were  British 
subjects,  as  individuals,  allowed  to  recover  for  injuries  to  the  corporate  property. 
See  Phillimore,  2nd  ed..  Ill,  §  578,  p.  859;  Baasch  and  Romer  (Netherlands)  v. 
Venezuela,  Feb.  28,  1902,  Ralston,  906  (the  claim  of  Dutch  stockholders  in  a  Vene- 
zuelan corporation,  which  sustained  the  damage,  denied).  See  also  Henriquez 
(Netherlands)  v.  Venezuela,  ibid.  910;  Brewer,  Moller  and  Co.  (Germany)  v.  Vene- 
zuela, Feb.  13,  Maj'  7,  1903,  Ralston,  595,  597  (claim  of  a  German  partner  in  a  Vene- 
zuelan corporation,  which  sustained  injury,  denied).  See  also  Accessory  Transit 
Co.  (U.  S.)  V.  Costa  Rica,  July  2,  1860,  Moore's  Arb.  1560. 

*  Chauncey  (U.  S.)  v.  Chile,  No.  3,  May  24,  1897,  Report  of  Commission  1901,  19, 


624  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

the  laws  of  the  defendant  government,  were  denied  standing  be- 
fore arbitral  commissions,  when  attempting  to  enforce  a  corporate 
claim. 

That  the  nationality  of  the  corporation  rather  than  that  of  the 
stockholders  must  control  the  jurisdiction  of  international  tribunals 
in  claims  growing  out  of  corporate  losses  appears  evident  from  the 
fact  that  the  corporation,  the  trustee,  possesses  the  entire  legal  and 
equitable  title  to  a  claim  as  part  of  the  assets  of  the  corporation,  whereas 
the  stockholder  possesses  only  an  equitable  right,  enforceable  in  a 
court  of  equity,  to  an  accounting  and  to  compel  the  proper  manage- 
ment of  the  company  by  its  directors.  The  stockholder,  therefore, 
having  no  legal  title  to  the  corporate  property  of  a  solvent  corporation, 
can  hardly  be  recognized  by  an  arbitral  tribunal  acting  under  the 
usual  form  of  protocol  as  a  proper  party  claimant,  and  only  under 
exceptional  protocols,  as  will  presently  be  noticed,  has  this  been  done. 
While  it  is  possible  for  a  government,  therefore,  to  prosecute  the  claim 
of  a  national  corporation  from  which  foreign  stockholders  will  indirectly 
derive  a  benefit,  "the  inconvenience  on  the  one  hand,"  as  was  said 
by  the  Supreme  Court, ^  "is  completely  destroyed  by  the  overwhelm- 
ing preponderance  of  inconvenience  which  would  exist  on  the  other; 
for,  doubtless,  whilst  the  alien  corporator  may  be  an  exception,  the 
corporator,  who  is  both  a  citizen  of  the  state  and  a  citizen  of  the  United 
States,  is  the  rule.  To  follow  the  argument,  therefore,  would  make 
the  exception  dominate  and  destroy  the  rule." 

30.  (American  citizens  formed  a  company  ''en  comandita"  under  Chilean  law,  by 
which  this  company,  although  a  partnership  in  American  law,  was  regarded  as  a 
juristic  entity  with  Chilean  nationahty;  jurisdiction  was  therefore  denied.)  When 
this  case  was  subsequently  submitted  to  arbitration  (Alsop  and  Co.,  U.  S.,  v.  Chile, 
December  1,  1909),  His  Britannic  Majesty  as  Amiable  Compositeur  held  that  the 
terms  of  submission  obviated  an  examination  into  the  nationality  of  the  copartner- 
ship, the  claim  having  been  submitted  by  both  Governments  as  that  of  American 
citizens.  U.  S.  Counter  Case,  64-70,  Award,  July  5,  1911,  p.  9.  In  the  civil  law, 
there  are  various  kinds  of  associations  or  partnerships,  recognized  as  juridical  persons 
and  entities  distinct  from  the  members  composing  them,  e.  g.,  a  partnership  with  a 
collective  name,  a  partnership  with  special  partners,  an  anonymous  society  or  stock 
corporation  {.societe  anonyme),  a  society  with  special  partners  by  shares,  f.nd  co- 
operative societies. 

1  U.  S.  V.  Northwestern  Express  Co.,  164  U.  S.  686,  690, 


EFFECT   OF    CITIZENSHIP    OF   STOCKHOLDERS  625 

§  282.  Effect  of  Citizenship  of  Stockholders  upon  Jurisdiction  of  Inter- 
national Tribunals. 

The  question  as  to  whether  American  corporations  having  foreign 
stockholders  could  be  admitted  as  "citizens"  for  the  full  value  of  the 
claim,  or  only  for  the  proportion  of  stock  held  by  American  citizens 
was  exhaustivel}'  argued  in  several  cases  before  the  Spanish  Treaty 
Claims  Commission.^  The  Government  contended  that  only  the  Amer- 
ican stockholders  in  American  corporations  could  recover,  and  asked 
the  Commission  to  penetrate  the  fictitious  person  known  as  the  cor- 
poration and  apportion  the  damages.'  The  Commission  declined  to 
apportion  the  corporate  damages,  but  decided 

"that  a  corporation  may  prosecute  a  claim  to  adjudication  and  [the  Com- 
mission] reserves  the  right  to  determine,  on  final  consideration,  in  case 
a  claim  is  established,  whether  any  part  of  the  award  shall  inure  to  the 
benefit  of  a  shareholder  who,  as  an  individual,  could  not  have  prosecuted 
a  claim  to  adjudication"  {i.  e.,  foreign  stockholders  in  an  American  cor- 
poration). 5 

It  appears,  in  the  few  cases  in  which  awards  were  made  to  American 
corporations,  that  no  reduction  was  made  because  of  the  alien  owner- 
ship of  some  of  the  shares  of  stock.'* 

In  the  case  of  Barron  v.  the  United  States,  before  the  Mexican- 
United  States  commission  of  1868,^  Umpire  Lieber  held  that  the 
British  successors  in  interest  of  a  Mexican  corporation  must  stand 
upon  their  own  nationality  as  British  subjects.  In  a  peculiar  dictum, 
admitting  the  possible  continued  existence  of  the  corporation,  he 
intimated  that  corporate  organization  could  not  cloak  the  real  nation- 
ality of  the  actual  British  claimants. 

In  two  well-reasoned  opinions  in  the  Kunhardt  claim  against  Vene- 
zuela,® it  was  held  that  the  stockholders  of  a  going  corporation,  not 
being  co-owners  of  the  corporate  property,  cannot  prosecute  a  cor- 

^  Tuinucu  Sugar  Co.,  No.  240,  Hormiguero  Central  Co.,  No.  293,  IVIapos  Sugar 
Co.,  No.  121,  Victoria  Co.,  No.  141,  Rosario  Sugar  Co.,  No.  341,  Briefs,  VI,  249-370. 
2  Fuller's  Special  Report,  1907,  28-31. 

*  Order  No.  504,  Feb.  3,  1904,  sustaining  demurrer  to  the  government's  plea  in 
abatement. 

*  Narcisa  Sugar  Co.,  No.  139,  Briefs  XXIV,  167  (explanatory  notes). 
6  Barron  (Me.xico)  i'.  U.  S.,  July  4,  1868,  Moore's  Arb.  1520,  1523. 

^  Kunhardt  (U.  S.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  63,  opinions  of  Bainbridge 
and  Paul.    See  also  Hernsheira  v.  U.  S.,  No.  297,  Span.  Tr.  CI.  Com.,  4  A.  J.  I.  L.  815. 


026  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

porate  claim  on  the  part  of  the  corporation  or  themselves.  After 
dissolution  of  the  corporation,  however,  they  became  equitable  owners, 
in  proportionate  parts,  of  the  corporate  property,  subject,  however, 
to  the  payment  of  the  corporate  debts.  Kunhardt  and  Co.,  there- 
fore, were  given  a  standing  as  the  American  owners  of  stock  in  a  dis- 
solved Venezuelan  corporation  but  damages  were  not  assessed  in  their 
favor  owing  to  lack  of  evidence  of  the  corporate  liabilities. 

In  the  Delagoa  Bay  arbitration  ^  and  the  Salvador  Commercial 
Company  case,-  a  thorough  examination  into  the  question  of  the  right 
of  American  stockholders  in  a  foreign  corporation  to  prosecute  claims 
for  their  share  of  the  losses  of  the  corporation  was  precluded  by  the 
terms  of  the  protocol,  which  made  the  shareholders  the  parties  claimant. 
It  may  be  said,  however,  that  the  foreign  corporations  in  both  cases 
were  practically  defunct,  and  the  equitable  interest  of  the  stockholders 
could  with  some  justice  be  supported,  as  it  was,  by  their  government. 
In  the  cases  of  Cerruti  against  Colombia  ^  and  Alsop  against  Chile, ^ 
claimants  were  members  of  a  firm  established  under  the  laws  of  the 
defendant  government  and  by  its  law  regarded  as  a  juridical  person 
and  national  entity.  President  Cleveland  in  the  first  case  and  his 
Britannic  Majesty  in  the  second  considered  themselves  empowered, 
under  the  terms  of  submission,  to  award  indemnities  to  the  individual 
firm  members  on  whose  behalf  the  claimant  government,  of  which 
they  were  citizens,  prosecuted  the  claim. 

»  McMurdo  (U.  S.)  v.  Portugal,  June  13,  1891,  Moore's  Arb.  1865  et  seq.,  For.  Rel., 
1900,  903. 

2  Salvador  Commercial  Co.  (U.  S.)  v.  Salvador,  Dec.  19,  1901,  For.  Rel.,  1902, 
857,  862-873. 

»  Cerruti  (Italy)  v.  Colombia,  Aug.  18, 1894,  For.  Rel.,  1898,  245.  The  Government 
of  Colombia  jjro tested  against  the  award  of  President  Cleveland,  as  arbitrator,  so 
far  as  the  debts  of  the  firm  of  Cerruti  and  Co.  were  concerned,  and  in  fact  refused 
to  execute  that  part  of  the  award.  Long  and  acrimonious  negotiations  ensued,  al- 
though Colombia  finally  executed  the  award.  The  Cerruti  claim  is  discussed  by 
Bureau  in  his  work  Le  conflit  italo-colombien  (affaire  Cerruti),  Paris,  1899,  by 
Darras  in  6  R.  G.  D.  I.  P.  (1899),  533-552  and  by  Pierantoni  in  ,30  R.  D.  I.  (1898), 
445-462.  Controversies  growing  out  of  the  execution  of  the  award  led  to  another 
arbitration  between  Italy  and  Colombia  under  a  protocol  of  Oct.  28,  1909.  See 
Award  of  July  6,  1911  in  6  A.  J.  I.  L.  (1912),  1018-1029,  and  Francis  Hagerup's 
Report  in  19  R.  G.  D.  I.  P.  (1912),  268-274. 

*  Alsop  and  Co.  (U.  S.)  v.  Chile,  Dec.  1,  1909,  5  A.  J.  I.  L.  (1911),  1079. 


CHAPTER  V 
SUCCESSORS   IN   INTEREST  AND  BENEFICIAL  OWNERS 

§  283.  Effect  of  Citizenship  of  Derivative  Claimants. 

The  rules  of  municipal  law  authorizing  successors  in  interest  of 
original  claimants  to  invoke  the  rights  and  pursue  the  remedies  of 
their  predecessors  are  tempered  in  the  prosecution  of  international 
claims  by  such  questions  as  the  national  status  of  the  successors  and 
their  rights  under  international  conventions  to  represent  the  original 
claimants.  The  rules  of  the  Department  of  State  also  require  that  a 
person  who  claims  in  the  right  of  another  shall  show  "whether  such 
other  was  a  citizen  when  the  claim  had  its  origin."  Among  successors 
in  interest,  special  consideration  will  be  given  (a)  to  heirs,  (b)  to  ex- 
ecutors and  administrators,  including  personal  representatives,  and 
(c)  to  assignees  and  receivers.  The  rights  of  beneficial  owners,  includ- 
ing creditors,  mortgagees  and  insurers,  will  be  considered  separately. 

HEIRS 

§  284.  Citizenship  of  Decedent  and  Heir  Usually  Required. 

Some  consideration  has  already  been  given,  under  the  head  of  widows 
and  children,^  to  the  right  of  heirs  to  institute  international  claims 
in  their  own  behalf.  No  uniform  rule  in  the  matter  can  be  invoked, 
but  general  practice  sanctions  the  requirement  that  the  heir  prove 
both  his  own  and  the  decedent's  citizenship  as  a  necessary  condition 
to  diplomatic  interposition  in  his  behalf.  The  failure  of  proof  under 
either  head  will  usually  deprive  the  claim  of  diplomatic  cognizance, 
although  cases  have  been  cited  in  which  widows  have,  regardless  of 
their  own  citizenship,  obtained  diplomatic  relief  for  injuries  inflicted 
upon  their  deceased  husbands.^    As  a  general  rule,  however,  to  justify 

1  Swpra,  §  268. 

627 


628  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

the  presentation  of  a  claim,  the  heirs  must  be  of  the  same  nationality 
as  the  ancestor,  the  original  claimant. 

In  case  the  claimant  dies  in  the  course  of  diplomatic  negotiations 
for  redress,  the  prosecution  of  the  claim  will  not  usually  cease,  pro- 
vided the  right  of  action  is  deemed  to  survive.  This  is  so,  on  principle, 
regardless  of  proof  of  heirs,  because  the  claim  had  already  assumed 
a  national  character.  In  the  Shields  case  against  Chile,  in  which  the 
death,  some  years  after  the  claim  was  first  instituted,  of  a  British 
seaman  who  had  served  on  an  American  vessel,  may  be  considered 
to  have  divested  the  United  States  of  all  interest  in  the  claim,  a  pro- 
tocol of  agreement  to  settle  the  claim  was  concluded  between  the 
United  States  and  Chile  on  behalf  of  the  heirs  of  Shields.^ 

§  285.  Decisions  of  International  Tribunals  of  Arbitration. 

In  determining  the  right  of  heirs  to  appear  as  claimants  before  in- 
ternational commissions,  it  is  essential  to  examine  the  jurisdictional 
clause  of  the  protocol  or  treaty  under  which  the  commission  acts. 
For  example,  the  fact  that  article  2  of  the  treaty  of  1880  between 
France  and  the  United  States  provided  for  the  examination  of  claims 
"presented  to  [the  Commission]  by  the  citizens  of  [France]"  was  held 
to  justify  the  rejection  of  the  claim  of  Wiltz,  public  administratoi 
of  the  estate  of  a  French  citizen,  in  the  absence  of  proof  of  the  French 
citizenship  of  the  real  and  beneficial  claimants  who  through  him  actually 
presented  the  claim.-  In  fact,  under  the  general  form  of  protocol  for 
the  adjudication  of  the  claims  of  the  citizens  of  one  country  against 
the  other,  international  tribunals  have  generally  held  that  not  only 
the  deceased  but  the  actual  beneficiary  must  come  within  the  juris- 
diction of  the  commission  in  the  matter  of  citizenship.  Heirs,  there- 
fore, have  been  required  to  establish  their  jurisdictional  citizenship 
independently  of  their  ancestor,  failing  which  their  claims  have  been 
rejected.''    When  the  claim  was  national  in  origin,  but  passed  into  the 

'  May  24,  1897,  Malloy's  Treaties,  I,  190;  $3,500  was  paid  to  the  U.  S.  For. 
Hel.,  1900,  67. 

2  Wiltz  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2243,  2240;  Mrs.  Grayson, 
Adm.  (Gt.  Brit.),  v.  U.  S.,  Feb.  8,  1871,  Hale's  Rep.  19  (only  British-owned  portion 
of  claim  allowed,  claim  on  part  of  widow,  American  citizen,  being  disallowed). 

'  Lizardi  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  1353;  Maxan's  Heirs  (U.  S.) 


DECISIONS  OF   INTERNATIONAL  TRIBUNALS  OF  ARBITRATION      629 

hands  of  an  alien  heir,  it  has  usually  been  dismissed  on  the  principle 
that  a  claim  must  be  national  in  origin  as  well  as  at  the  time  of  pres- 
entation,^ although  we  shall  presently  notice  certain  exceptions  to 
this  rule.  When  the  claimant  was  the  heir  and  himself  a  citizen,  but 
the  person  who  sustained  injury  was  an  alien,  and  not  within  the 
jurisdiction  of  the  commission,  the  claim  was  likewise  rejected  under 
the  general  principle,  and  on  the  special  ground  that  an  heir  could 
not  inherit  more  rights  than  his  ancestor  possessed.^ 

In  several  cases  where  the  claimant  died  after  the  presentation  of 
his  claim,  and  before  the  award,  his  rights  were  considered  to  have 
vested  in  his  heirs,  regardless  of  their  own  nationality.^  In  the  Betan- 
court  case  before  the  Spanish  Treaty  Claims  Commission,  claimant 
died  intestate  in  1904,  i.  e.,  after  the  ratification  of  the  treaty  of  Paris, 
and  his  personal  representative  was  substituted.  The  original  claimant 
having  been  a  citizen  of  the  United  States,  the  commission  made  an 
award  to  the  "personal  representative,"  regardless  of  the  nationality 
of  the  heirs,  who  indeed  were  in  part  Spanish.'* 

Contrary  to  the  general  rule  that  an  international  tribunal  will 
look  behind  the  executor  or  administrator  representing  the  estate 
of  a  deceased  national  and  seek  to  ascertain  the  nationality  of  the 

V.  Mexico,  ibid.  2485;  Wulff  (U.  S.)  v.  Mexico,  ibid.  1354  ("direct  recipients  of  the 
award"  must  be  citizens);  Chopin  (France)  v.  U.  S.,  Jan.  15,  1880,  ibid.  2506;  Levy 
(France)  v.  U.  S.,  iMd.  2514;  Heirs  of  Massiani  (France)  v.  Venezuela,  Feb.  19,  1902, 
Sen.  Doc.  533,  59th  Cong.,  1st  sess.,  211,  242;  Heirs  of  Maninat,  ibid.  44,  75;  Steven- 
son (Gt.  Brit.)  V.  Venezuela,  Feb.  13,  1903,  Ralston,  438,  455;  Poggioli  (Italy)  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  847,  86G;  Brignone  (Italj')  v.  Venezuela,  ibid. 
710,  719;  Miliani  (Italy)  v.  Venezuela,  ibid.  754,  762.  See  also  Burthe  v.  Denis,  133 
U.  S.  514,  and  Mrs.  Bodemiiller's  case,  39  Fed.  437  {dictum).  Before  the  Southern 
Claims  Commission,  heirs  had  to  establish  their  jurisdictional  loyaltj',  independ- 
ently of  their  ancestor.  Second  Gen.  Rep.,  H.  Misc.  Doc.  12,  42nd  Cong.,  3rd 
sess.,  3. 

'  lufw,  §  306  e<  seq. 

2  Foulke,  Adm.  (Cisneros),  U.  S.  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2334; 
Diaz  V.  U.  S.,  No.  300,  Span.  Tr.  CI.  Com.  (claimant's  father  died  before  treaty 
of  1898).  Briefs,  etc.,  XXIV,  136.  See  Ralston's  remarks  in  Corvaia  (Italy)  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  782,  809. 

'  Chopin  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2506.  Boutwell's  Rep.  88; 
Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  438,  455. 

«  Betancourt  v.  U.  S.,  No.  466,  Fuller's  Special  Rep.,  1907,  p.  44.  See  Mr.  Fuller's 
explanatory  note. 


630  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

heirs  or  creditors,  there  have  been  some  eases  in  which  the  commission 
has  not  apparently  considered  it  necessary  to  inquire  into  the  nation- 
ality of  the  prospective  beneficiaries  of  an  award,  but  has  taken  juris- 
diction on  the  ground  that  the  deceased  national  came  within  the 
terms  of  the  protocol — and  this  without  regard  to  the  nationality  of 
the  executor  or  administrator.^  There  is  much  to  be  said  in  support 
of  this  view.  If  it  is  the  injury  to  the  state  in  the  person  of  its  citizen 
which  justifies  diplomatic  interposition,  the  mere  fact  that  the  claim 
subsequently  by  operation  of  law  passes  into  the  hands  of  alien  heirs 
would  not  seem  to  modify  the  injury  to  the  state.  Moreover,  the 
award  when  received  is  a  national  fund,  to  be  distributed  by  the  govern- 
ment as  it  deems  proper.  It  might,  in  its  discretion,  exclude  aliens 
from  participation  in  the  distribution. 

§  286.  Law  Governing  Distribution  of  Estate. 

The  determination  of  the  persons  who  are  heirs  and  the  rule  which 
shall  govern  in  the  distribution  of  a  decedent's  estate  is  in  Anglo- 
American  law  and  in  a  few  of  the  continental  countries  governed  by 
the  law  of  the  domicil  of  the  decedent,  but  is  in  most  civil  law  countries 
governed  by  his  nationality.^  The  confusion  to  which  these  conflict- 
ing principles  have  given  rise  has  been  pointed  out  in  a  number  of 
works  on  the  municipal  law  of  succession.'^  In  an  unratified  convention, 
drafted  at  The  Hague,  July  17,  1905,  to  regulate  conflicts  of  law  in 
the  matter  of  succession,  the  majority  of  the  countries  of  Europe  agreed 

>  HaUey,  Adm.  (Gt.  Brit.),  v.  U.  S.,  Feb.  8,  1871,  Hale's  Rep.  20,  Moore's  Arb. 
2241  (the  opinion  is  not  altogether  clear).  See  dissenting  opinion  by  Frazer,  2242; 
Willet,  Adm.  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  ibid.  2254;  Executor  of  Peck  (U.  S.) 
V.  Venezuela,  ibid.  2257.  See  also  Alsop  (U.  S.)  v.  Chile,  Dec.  1,  1909,  U.  S.  Counter 
Case,  191-192,  Award  July  5,  1911.  Semble,  Piton  (France)  v.  Venezuela,  Feb.  19, 
1902,  S.  Doc.  533,  59th  Cong.,  1st  sess.,  462. 

2  Bentwich,  Norman,  The  law  of  domicil  in  its  relation  to  succession,  London,  1911, 
189  et  seq. 

'  Contuzzi,  F.  P.,  II  diritto  ereditario  internazionale,  Milano,  1908;  Raison,  E., 
Trait6  des  successions  d'etrangers,  Paris,  1911;  Pilet,  Raymond,  Des  successions 
dans  le  droit  international  priv6,  Rennes,  1885;  Burgin,  E.  L.,  Administration  of 
foreign  estates,  London,  1913;  Bridel,  Louis,  Succession  legale  eomparde,  Tokio, 
1909;  Fildermann,  W.,  Les  successions  en  droit  compar6,  Paris,  1909;  Roguin,  E., 
Trait 6  de  droit  civil  compare;  Les  successions,  v.  IV  and  V,  Paris,  1912. 


LAW    GOVERNING    DISTRIBUTION    OF   ESTATE  631 

that  in  regard  to  the  matter  of  heirship,  the  disposable  share  and  rep- 
resentation, the  national  law  of  the  deceased  should  govern,  regardless 
of  the  nature  and  situation  of  the  property,  but  the  principal  countries 
which  follow  the  rule  of  domicil  were  not  represented. 

In  the  few  cases  which  have  come  before  international  commissions, 
the  law  of  the  last  domicil  was  held  to  govern  in  the  distribution  of  a 
personal  estate.^  In  a  case  where  certain  American  heirs  brought  a 
claim  against  Great  Britain  on  account  of  moneys  of  an  English  woman 
held  by  that  government  in  trust  for  the  heirs,  it  may  be  inferred 
from  the  argument  that  a  duly  qualified  administrator  should  have 
appeared  as  claimant,  the  claim  being  dismissed  on  the  ground  that 
no  case  had  been  found  where  a  government  had  interfered  with  ques- 
tions of  succession  in  other  jurisdictions.^  The  administrator  has 
been  held  to  be  the  proper  party  claimant  on  behalf  of  a  personal 
estate,^  when  the  law  of  the  domicil  so  provides,  and  especially  when 
it  appears  that  there  are  creditors  of  the  estate.  This  is  in  accordance 
with  the  common  law  principle,  adopted  in  most  of  the  states,  that 
the  administrator  takes  the  legal  title  to  personal  property,  and  not 
the  heir  or  legatees.^ 

Under  the  French  Spoliation  claims,  it  was  held  that  Congress, 
in  giving  preference  to  next  of  kin,  intended  that  the  next  of  kin  living 
at  the  date  of  the  appropriation  act  of  1891,  and  those  determined 
as  such  by  the  statutes  of  distribution  of  the  respective  states  of  the 
domicil  of  the  original  sufferers  are  the  persons  entitled  to  an  award, 
to  the  exclusion  of  creditors,  legatees,  and  assignees,  strangers  to  the 
blood. ^  The  Court  of  Claims  merely  determined  the  validity  and 
amount  of  the  claims,  whereas  Congress  decided  who  is  equitably 

1  Brignone  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  719  (both  laws  recog- 
nized that  succession  opens  at  the  place  of  the  last  domicil,  where  claimant  died  and 
his  property  was  situated);  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  ibid. 
455  (domicil  was  place  of  death). 

2  Cook  (U.  S.)  V.  Great  Britain,  Feb.  8,  1853,  Moore's  Arb.  2313,  2315. 

'  Bodemuller  v.  U.  S.,  39  Fed.  437;  Baynum  (U.  S.)  v.  Mexico,  March  3,  1849  and 
other  cases,  Moore's  Arb.  1271.    See  also  infra,  §  287. 

*  Hamner's  case,  13  Ct.  CI.  7,  where  a  son,  as  distributee  of  his  father's  estate, 
was  held  not  entitled  to  maintain  a  suit  under  the  Abandoned  or  Captured  Property 
Act. 

s  Blagge  V.  Balch,  162  U.  S.  439. 


532  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

entitled  to  participate  in  the  award. ^  The  same  conclusion  was  reached 
by  justice  Story  in  the  celebrated  case  of  Comegys  v.  Vasse,  as  to  the 
function  of  the  commissioners  under  the  treaty  of  1819  with  Spain, 
passing  upon  claims  against  Spain.^ 

§  286a.  Survivorship  of  Claims. 

Commissions  have  occasionally  had  to  determine  the  class  of  claims 
which  survived  the  death  of  a  claimant.  In  one  such  case,  the  matter 
was  held  to  be  governed  by  the  law  of  the  domicil,  according  to  which 
claims  for  bodily  injuries  passed  to  the  heirs,  but  those  for  injuries 
to  feelings  or  reputation  died  with  the  person.^  In  certain  cases  be- 
fore the  British-American  commission  of  1871,  claims  were  allowed 
to  {Dersonal  representatives  for  injuries  resulting  in  death,  notwith- 
standing the  fact  that  neither  the  law  of  the  United  States  nor  Great 
Britain  awarded  damages  for  death  by  wrongful  act.'*  In  several 
cases,  awards  for  death  by  wrongful  act  appear  to  have  been  made, 
without  question,  to  the  heirs  of  the  deceased,  without  any  contention 
that  the  claims  should  have  been  presented  by  an  administrator.^ 
There  has  been  a  case,  however,  in  which  the  right  to  obtain  damages 
for  personal  injuries  has  been  held  to  die  with  the  person,  and  not  to 
survive  to  the  heir  or  administrator.® 

In  claims  arising  out  of  injuries  to  person  or  property,  it  is  the  better 
practice  for  the  administrator  to  represent  the  estate  of  the  deceased, 
although  the  widow  and  children  in  their  characters  as  such  may  in 
addition  pursue  their  claims  for  losses. 

'  Buchanan,  Adm.,  v.  U.  S.,  Act  of  Jan.  20,  1885,  24  Ct.  CI.  74. 

2  Comegys  v.  Vasse,  1  Pet.  (26  U.  S.),  193. 

3  Metzger  (Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  580. 

*  Brain  (Gt.  Brit.)  v.  U.  S.,  Feb.  8,  1871,  Hale's  Rej).  61,  Moore's  Arb.  3278;  Sher- 
man, ibid.  3278  (in  this  case  there  seems  to  have  been  no  connection  between  the 
injury  and  the  death,  but  in  lioth  cases  claimant  left  a  widow  an<l  minor  children). 
On  final  hearing  on  the  merits,  tlie  claim  of  Mrs.  Sherman  was  disallowed.  In 
McHugh,  ibid.  3279,  where  claimant  died  unmarried  without  heirs,  the  U.  S.  de- 
murrer was  sustained  and  the  claim  disallowed.  See  Frazer's  dissenting  opinion, 
Hale's  Re]).  240,  Moore's  Arb.  3279. 

"  Heirs  of  Cyrus  Donougho  (U.  S.)  i>.  Mexico,  July  4,  1868,  Moore's  Arb.  3012;  Di 
Caro  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  769;  Cesarino  (Italy)  v.  Vene- 
zuela, ibiil.  770. 

'Plumer,  Adm.  (U.  S.),  v.  Mexico,  March  3,  1849,  Opin.  182  (not  in  Moore). 


EXECUTORS   AND   ADMINISTRATORS  G33 


EXECUTORS   AND    ADMINISTRATORS 

§  287.  Rules  Governing  Right  of  Representation. 

Persons  acting  in  a  representative  capacity  as  executors  or  adminis- 
trators are  admitted  as  proper  parties  to  invoke  diplomatic  protection 
on  behalf  of  the  estate  of  a  decedent,  provided  they  produce  valid 
proof  of  their  legal  representative  character,  i.  e.,  an  exemplified  copy 
of  the  will  or  letters  of  administration,  and  proof  of  their  own  identity 
and  that  of  the  decedent. 

The  right  of  consuls  to  act  on  behalf  of  deceased  nationals  is  usually 
provided  for  in  treaties  or  by  the  municipal  law  of  the  place  where 
the  person -died  or  the  property  is  situated.^  Upon  the  death  of  a 
foreigner  without  known  or  resident  heirs  or  next  of  kin,  a  public  ad- 
ministrator is  often  appointed  to  act  for  the  estate. 

International  commissions  usually  provide  in  the  rules  governing 
their  procedure  how  and  by  whom  the  claims  of  deceased  persons 
shall  be  presented.  In  the  statutes  establishing  domestic  commis- 
sions, similar  provisions  are  generally  found.  These  requirements 
are  strictly  enforced,  and  not  a  few  claims  have  been  dismissed  because 
the  proper  person  had  not  appeared  as  claimant. 

In  the  case  of  injuries  to  the  person  or  property  of  the  deceased 
which  may  be  deemed  debts  due  to  his  estate,  the  personal  representa- 
tive, usually  the  executor  or  administrator,  and  not  the  heir,  has  been 
regarded  as  the  proper  party  claimant.-  The  reason  for  this  rule  was 
stated  by  the  domestic  commission  under  the  Act  of  March  3,  1849, 
as  follows: 

"The  board  has  not  the  means  of  deciding  questions  touching  the  dis- 
tribution of  intestate  estates,  which  depend  upon  local  laws  and  involve 
inquiries  as  to  domicil  and  many  other  topics  of  which  we  are  furnished 
with  no  evidence.    Besides,  it  may  happen  that  the  rights  of  creditors 

>  Supra,  §  166. 

*  Robinson  (U.  S.)  v.  Mexico,  Act  of  March  3,  1849,  Moore's  Arb.  2.389  (son  of  the 
deceased  not  proper  party  claimant,  unless  proof  presented  that  son  is  executor  or 
administrator);  Plumer,  Adm.  (U.  S.),  v.  Mexico,  Opin.  182  (not  in  Moore);  Baynum 
(U.  S.)  V.  Mexico,  March  3,  1849,  Moore's  Arb.  1271;  Wiltz  (U.  S.)  v.  Venezuela, 
Dec.  5,  1885,  ibid.  2243;  Thompson  v.  U.  S.,  20  Ct.  CI.  276  (Japanese  Indemnity  Fund 
Act  of  1883). 


634  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

are  involved,  who  are  entitled  to  be  paid  before  any  distribution  can 
be  made."  * 

The  administrator  or  executor  must  prove  his  legal  right  to  appear 
in  his  representative  capacity,  by  the  production  of  a  probated  will 
or  letters  of  administration,  as  the  case  may  be.  A  widow,  prosecut- 
ing the  claim  of  a  deceased  husband,  was  on  this  ground,  denied  stand- 
ing before  a  commission. ^  Similarly,  a  "voluntary,"  but  not  a  legal 
representative,  was  denied  the  right  to  recover.^ 

§  288.  Citizenship  of  Original  Claimant  Governs  Jurisdiction. 

It  has  been  observed  *  that  the  commission  will  look  behind  the 
administrator  or  person  acting  in  a  representative  capacity  to  de- 
termine the  nationality  of  the  real  claimant  or  beneficiary,^  although 
in  some  cases  the  investigation  was  limited  to  the  citizenship  of  the 
person  upon  whom  the  injury  was  originally  inflicted.^  Indeed,  it 
has  been  expressly  held  that  the  nationality  of  the  administrator  was 
without  effect  upon  the  question.^  This  indifference  as  to  nationality 
does  not  apparently  extend  to  an  executor.^ 

§  289.  Who  May  Act  as  Legal  Representative. 

The  question  as  to  who  may  properly  represent  a  claimant,  during 
life  and  after  death,  has  occasionally  come  before  commissions  for 
determination.  The  representative  must  always  show  actual  or  pre- 
sumptive authority  from  a  living  person  he  represents.^    A  municipal 

1  Baynum  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  1271. 

2  Underbill  (U.  S.)  v.  Venezuela,  Feb.  17,  190.3,  Ralston,  45,  48.  On  her  subse- 
quently taking  out  letters  of  administration,  the  commission  decided  that  under 
their  rules  of  procedure,  the  case  had  been  already  closed. 

3  Driggs  (U.  S.)  (;.  Venezuela,  Dec.  .5,  1885,  Moore's  Arb.  2261. 

*  Supra,  p.  629. 

5  Alvarez  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  1353;  Wiltz  (U.  S.)  v. 
Venezuela,  Dec.  5,  1885,  ibid.  2246. 

MVillet  (U.  S.)  V.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  22.'")4;  Peck  (U.  S.)  v. 
Venezuela,  ihid.  2257. 

7  Halley,  Adm.,  and  Ferris,  Adm.,  No.  205  and  No.  214  (Gt.  Brit.)  v.  U.  S.,  May  8, 
1871,  Moore's  Arb.  2242;  Wiltz,  Adm.  (U.  S.),  v.  Venezuela,  Dee.  5,  1885,  ibid.  2246 

"Watson,  executor  of  Meiggs  (U.  S.),  v.  Chile,  Aug.  7,  1892,  Moore's  Arb.  22.59. 
But  the  commission  permitted  an  amendment  of  the  memorial  to  show  the  citizen- 
■hip  of  the  heirs,  of  which  permission  no  advantage  appears  to  have  been  taken. 

•  See  instances  before  second  court  of  Alabama  claims,  Moore's  Arb.  4681,  4683. 


WHO  MAY  ACT  AS  LEGAL  REPRESENTATIVE  635 

corporation  has  been  held  not  to  be  the  representative  of  its  citizens 
who  might  claim  for  themselves.^  The  second  Alabama  Claims  court 
held  that  a  judgment  could  not  be  rendered  in  favor  of  a  guardian. ^ 
On  the  other  hand,  the  owners  of  a  ship  were  regarded  as  "the  natural 
representatives  of  the  master  and  seamen."  ^  It  has  also  been  held 
that  a  party  may  when  absent  from  the  state  of  residence,  file  his 
memorial  by  his  attorney  in  fact.^  It  has  been  observed  ^  that  sur- 
viving partners,  in  accordance  with  the  common  law  rule,  have  been 
permitted  to  prosecute  partnership  claims,  although  in  one  case  where 
the  surviving  partner  was  an  alien,  his  deceased  citizen  partner's  in- 
terest was  held  to  pass  to  the  latter's  personal  representative.  The 
administrator  of  a  surviving  partner  has  been  allowed  in  appropriate 
cases  to  be  substituted  for  the  original  claimant.® 

Under  the  Abandoned  or  Captured  Property  Act,  by  which  proof 
of  loyalty  was  a  necessary  condition  of  recovery,  it  was  held  that  after 
the  grant  of  letters  of  administration,  when  the  seizure  occurred,  the 
administratrix,  having  title,  could  recover  on  proof  of  her  loyalty, 
regardless  of  the  disloyalty  of  her  intestate,^  but  that  where  the  prop- 
erty was  seized  during  the  lifetime  of  the  intestate,  the  latter's  loyalty 
had  to  be  proved.^ 

The  second  Court  of  Alabama  Claims  decided  that  where  an  admin- 
istrator was  appointed  abroad,  ancillary  administration  had  to  be 
taken  out  in  the  District  of  Columbia,  as  a  condition  for  maintaining 
a  claim. ^ 

Under  the  French  Spoliation  Act  of  January  20,  1885,  the  Court 

1  Reynosa  (Mexico)  v.  U.  S.,  July  4,  1868,  Moore's  Arb.  1356. 

2/Wd.  4681. 

3  Emily  Banning  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  1356. 

*  Dusenberg  (U.  S.)  v.  Mexico,  ibid.  2157. 

6  Supra,  §  276. 

"Coleman  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's  Rep.  98. 

7  Carroll  v.  V.  S.,  13  Wall.  151.  See  also  Newman  v.  U.  S.,  21  Ct.  CI.  205,  in  which 
the  administrator  in  possession,  and  not  the  widow  or  next  of  kin  had  to  prove  loyalty. 

8  Meldrim  and  Doyle  v.  U.  S.,  7  Ct.  CI.  597;  Deeson  i..  U.  S.,  5  Ct.  CI.  526.  So 
the  disloyal  administrator  of  a  loyal  intestate  recovered  award  in  Wilson  v.  U.  S., 
4  Ct.  CI.  559,  13  Wall.  128;  ibid,  in  cases  of  disloyal  executor,  Taylor  v.  U.  S.,  5  Ct.  CI. 
701. 

*  Moore's  Arb.  4681;  see  also  Manning  v.  Leighton,  26  Atl.  258. 


636  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

of  Claims,  besides  the  validity  and  amount  of  the  claim,  determined 
its  "present  ownership,"  which  was  regarded  as  lodged  in  the  personal 
representative  who  might  maintain  a  suit  at  law  if  the  claim  were  an 
ordinary  chose  in  action;  i.  e.,  in  the  administrator  of  the  original 
sufferer  or  of  the  latter's  assignee.  By  the  Act  of  March  3,  1891  (26 
Stat.  L.  862,  908),  making -appropriations  for  the  payment  of  awards, 
Congress  provided  that  where  the  original  sufferers  were  adjudged 
bankrupts,  the  award  shall  be  made  on  behalf  of  the  next  of  kin  instead 
of  assignees  in  bankruptcy.^  In  the  case  of  individual  claimants, 
the  Court  of  Claims  had  to  certify  to  the  Secretarv  of  the  Treasury 
that  the  personal  representative  on  whose  behalf  the  award  was  made 
represented  the  next  of  kin,  of  which  fact,  and  of  the  giving  of  adequate 
security,  the  Court  had  to  be  satisfied.  The  Court  construed  this 
as  general  legislation,  and  held  thereafter  that  onlv  the  administra- 
tor who  represents  the  next  of  kin  of  the  original  sufferer  was  the  party 
entitled  to  relief.^  The  record  of  a  probate  court  granting  adminis- 
tration was  not  deemed  sufficient  evidence  of  his  representing  the 
next  of  kin,  which  was  required  to  be  supplemented  by  depositions.' 

A  recent  bill  introduced  in  Congress  provides  that  no  claim  against 
the  United  States  shall  be  paid  to  a  public  administrator,  unless  he 
was  "appointed  upon  the  petition  of  heirs  at  law  and  next  of  kin  of 
the  deceased,  or  a  bona  fide  creditor  of  the  estate."  * 

ASSIGNEES 

§  290.  Assignability  of  Claims. 

The  assignability  of  claims  is  fully  recognized  by  practically  all 
systems  of  municipal  law  and  by  international  law.  In  Anglo-American 
law  the  test  in  determining  the  assignability  of  a  chose  in  action  is 
whether  or  not  it  would  survive  and  pass  to  the  personal  representa- 
tive of  a  decedent.     If  it  would  so  survive,  it  may  be  assigned  so  as 

1  Brig  Hannah,  Van  Uxen,  Adm.,  v.  U.  S.,  27  Ct.  CI.  328. 

2  Ship  Concord,  27  Ct.  CI.  142;  Ship  Theresa,  28  Ct.  CI.  326  (dictum).  See  also 
Blagge  V.  Balch,  162  U.  S.  439. 

'  Eldridge,  Adm.,  v.  U.  S.,  26  Ct.  CI.  253.  See  also  Ship  Eliza,  28  Ct.  CI.  480,  and 
Sliip  Juliana,  35  Ct.  CI.  400. 

*  S.  3180,  63rd  Cong.,  let  sess.,  Oct.  2,  1913,  by  Senator  Hughes. 


ASSIGNOR  AND   ASSIGNEE  MUST  HAVE   SAME   CITIZENSHIP  637 

to  pass  an  interest  to  the  assignee  which  he  can  in  most  jurisdictions 
enforce  in  his  own  name;  if  it  does  not  so  survive,  it  is  not  assignable.^ 
The  common-law  rule  as  to  the  non-assignability  of  choses  in  action, 
first  modified  by  courts  of  equity,  has  been  practically  abandoned, 
and  rights  of  action  arising  out  of  contract  or  out  of  torts  which  are 
injuries  to  property,  are  now  generally  recognized  as  assignable.  So 
in  international  law  claims  arising  out  of  concession  contracts  ^  or 
arising  from  the  tortious  taking  of  property  ^  may  be  assigned,  so  as 
to  vest  the  legal  title  in  the  assignee. 

Under  the  general  rule  that  a  claim  must  be  national  in  origin  in 
order  to  obtain  diplomatic  cognizance,  the  Department  of  State  has 
on  many  occasions  declined  its  protection  to  the  American  assignee 
of  a  claim  which  originally  belonged  to  an  alien.  In  other  words, 
the  right  of  interposition  is  not  assignable.^  When,  however,  a  foreign 
concession,  after  its  valid  assignment  to  an  American  citizen,  is  vio- 
lated by  a  foreign  government,  the  injury  is  considered  American  in 
its  origin  and  properly  the  subject  of  American  protection. 

§  291.  Assignor  and  Assignee  Must  Have  Same  Citizenship. 

The  validity  of  an  assignment  being  recognized,  the  transfer  of  a 
claim  from  an  assignor  of  one  nationality  to  an  assignee  of  another 
has  often  been  regarded  by  international  tribunals  as  fatal  to  the 
claim.  Thus,  an  assignor,  a  citizen  of  the  claimant  country,  was  in 
several  cases  held  to  have  denationalized  his  claim  and  to  have  lost 
his  standing  before  an  international  commission  by  reason  of  having 
transferred  it  to  the  national  of  another  country.^    By  the  assignment, 

^  2  Am.  and  Eng.  Encyc.  of  Law,  1017,  citing  Pomery  on  Remedies  and  remedial 
rights,  §§  146-147.    See  also  Comegys  v.  Vasse,  1  Pet.  193. 

2  Orinoco  Steamship  Co.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  73  (al- 
though the  question  of  notice  to  the  government  affected  the  matter);  McMurdo 
(U.  S.)  V.  Portugal,  June  13,  1891,  Moore's  Arb.  1865  et  seq.,  For.  Rel.,  1900,  1903. 

s  Camy  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2398,  Boutwell's  Rep.  105; 
Lasarte  (Peru)  v.  U.  S.,  Jan.  12,  1863,  Moore's  Arb.  2.390,  2394.  Decisions  of  British- 
American  Claims  Commission  of  1871,  Ralston,  International  arbitral  law,  103 
(wrongful  seizures  in  prize  cases);  Decisions  of  the  first  and  second  Court  of  Ala- 
bama Claims,  Moore's  Arb.  4654  and  4679,  4682;  Judson  v.  Corcoran,  17  How.  612; 
Lewis  V.  Bell,  17  How.  616. 

*  Moore's  Dig.  VI,  §  982. 

'  Laffitte  (U.  S.)  v.  France,  July  4,  1831,  Kane's  Notes;  Jarrero  (U.  S.)  v.  Mexico, 


638  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

the  claim  ceases  to  be  the  claim  of  the  originating  state.  The  assignor 
having  lost  the  legal  title  to  the  claim  and  the  assignee  not  having 
the  necessary  jurisdictional  nationality  are  both  disqualified  as  claim- 
ants. On  the  other  hand,  the  claims  of  assignees,  who  by  nationality 
were  within  the  jurisdiction  of  the  commission,  have  been  disallowed 
when  the  assignor  was  of  another  nationality.^  Jurisdictional  citizen- 
ship of  both  assignor  and  assignee  is  necessary.  The  conclusion  may 
therefore  be  drawn  that  while  claims  can  be  denationalized  by  their 
assignment  to  aliens,^  they  cannot  be  nationalized  by  their  assignment 
from  their  original  alien  owners  to  citizens.  Even  where  they  are 
original  American  claims,  but  are  assigned  to  aliens  and  then  reas- 
signed to  Americans,  it  seems  that  the  United  States  will  ordinarily 
decline  to  extend  its  protection.^  These  conclusions  are  merely  phases  of 
the  general  principles  that  a  claim  must  be  national  in  origin  as  well  as 
at  the  time  of  presentation  and  that  a  claim  must  be  continuously  owned 
by  a  citizen.'*  The  assignment  of  a  claim,  therefore,  from  one  citizen 
to  another  of  the  same  country  will  not  affect  its  national  character.^ 
In  this  case,  only  the  private  and  not  the  public  interest  passes.® 

§  292.  Special  Provisions  of  Federal  Statutes  in  Certain  Cases. 

While  the  right  to  indemnity  for  an  unjust  capture  has  been  held 
to  attach  to  the  ownership  of  the  property  captured  and  to  be  assign- 
Mar.  3,  1849,  Moore's  Arb.  2324;  Gamy  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's 
Arb.  2398  (in  which  case  an  ingenious  argument  to  the  effect  that  the  U.  S. 
Act  of  1853  prohibiting  assignments  of  claims  against  the  U.  S.  made  the  transfer 
invaUd,  and  therefore  left  the  title  in  the  assignor,  was  considered  unsound); 
Benson  (U.  S.)  v.  Peru,  Jan.  12,  1863,  ibid.  2390  (assignment  by  an  American 
citizen  to  a  Peruvian);  Coleman  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's  Rep.  98 
(assignment  by  British  subjects  to  American  assignee  a  ground  of  disallowance); 
Gerson  (U.  S.)  v.  Mexico,  July  4,  1868,  No.  531,  Opin.  II,  565-569. 

1  Slocum  (U.  S.)  V.  Mexico,  March  3,  1849,  Moore's  Arb.  2386.  See  also  Dimond 
(U.  S.)  V.  Mexico,  ibid.  2388  {dictum);  Barnes  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's 
Arb.  1353;  Lasarte  (Peru)  v.  U.  S.,  Jan.  12,  1863,  iUd.  2390,  2394. 

*  The  one  class  of  claims  which  cannot  be  extinguished  by  assignment  are  those 
where  there  is  a  direct  affront  or  injury  to  the  state,  e.  g.,  the  Lieachou  Riot  Cases, 
For.  Rcl.,  1904. 

'  Candelaria  Gold  and  Silver  Mining  Co.  claim,  1912. 

*  Infra,  §  306  et  seq. 

*  Comegys  v.  Vasse,  1  Pet.  193. 

*  Judson  »>.  Corcoran,  17  How.  612. 


SPECIAL    PROVISIONS    OF    FEDERAL    STATUTES    IN    CERTAIN    CASES      639 

able,*  a  somewhat  different  view  was  taken  by  Congress  in  the  French 
Spohation  Act  of  1885  ^  and  in  the  Act  of  March  3,  1891,  making  ap- 
propriations to  pay  awards  thereunder.  In  the  behef  that  many  of 
these  claims  had  passed  out  of  the  families  of  the  original  sufferers 
from  the  spoliations  and  into  the  hands  of  speculators  who  had  pur- 
chased them  at  a  great  discount  and  had  then  pressed  for  payment 
of  the  full  amount  of  the  original  losses,  Congress  authorized  the 
court  to  determine  whether  the  claims  belonged  to  assignees,  the  date 
of  the  assignment  and  the  consideration  paid  therefor,  and  in  the  Act 
of  1891  even  provided  that  awards  should  be  made  on  behalf  of  next  of 
kin  instead  of  to  assignees  in  bankruptcy.^  Few  claims  were  presented 
by  assignees.  The  Act  of  March  3,  1899  ^  provided  that  no  French 
Spoliation  claim  appropriated  for  was  to  be  paid  "if  held  by  assignment 
or  owned  by  an  insurance  company."  Where  the  assignment  had 
been  made  for  a  good  consideration  prior  to  1800,  the  date  of  the  as- 
sumption of  liability  by  the  United  States,  it  was  held  that  the  as- 
signee, who  then  owned  the  claim,  was  the  one  on  whose  behalf  the 
government  asserted  the  claim  against  France,  and  the  one  entitled 
to  an  award  under  the  Act.^ 

In  1853,  Congress  provided,  in  an  Act  to  prevent  frauds  upon  the 
Treasury, 

"that  all  transfers  and  assignments  hereafter  made  of  any  claim  upon 
the  United  States,  or  any  part  or  share  thereof,  .  .  .  shall  be  absolutely 
null  and  void,  unless  the  same  shall  be  freely  made  and  executed  .  .  . 
after  the  allowance  of  such  claim,  the  ascertainment  of  the  amount  due, 
and  the  issuing  of  a  warrant  for  the  payment  thereof."  ^ 

*  Coraegys  v.  Vasse,  1  Pet.  193. 

-  23  Stat.  L.  282.  A  similar  prohibition  of  payment  to  assignees  was  embodied 
by  Congress  in  the  Act  appropriating  funds  to  remunerate  the  officers  and  crew  of 
the  U.  S.  S.  Wyoming  for  valuable  services  in  destroying  hostile  vessels  in  Japan. 
Act  of  Feb.  22,  1883,  22  Stat.  L.  422. 

'  Provision  repeated  in  subsequent  appropriation  acts  in  payment  of  French 
Spoliation  Claims.  IVIemoi-andum  printed  for  Committee  on  War  Claims,  62nd 
Cong.,  2nd  sess.  (Washington,  1912),  p.  54. 

*  .30  Stat.  L.  1205. 

*  Brig  Betsey,  Daniel  Boyer,  Master,  H.  Doc.  369,  60th  Cong.,  1st  sess..  Report 
of  findings  of  the  Court  of  Claims,  to  accompany  H.  R.  19115  (1912),  p.  71. 

e  Act  of  Feb.  26,  1853,  10  Stat.  L.  170,  now  R.  S.,  §  3477.    The  history  of  the  Act 


(340  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

While  the  Act  was  at  first  broadly  construed  to  prevent  all  assignees 
from  bringing  suits  against  the  United  States/  its  application  has 
since  been  held  to  cover  cases  of  voluntary  assignment  only,  and  not 
to  extend  to  cases  where  title  is  transferred  by  operation  of  law,  e.  g., 
where  the  assignee  is  an  executor,  administrator,  or  an  assignee  in 
bankru))tcy,  or  for  the  benefit  of  creditors.-  It  has  been  held  that 
when  the  assignment  is  void  under  the  Act  of  1853,  it  may  before 
actual  payment  be  repudiated  by  the  assignor,  who  may  then  sue  in 
his  own  name.  The  Act  of  March  3,  1887,  which  enlarged  the  juris- 
diction of  the  Court  of  Claims  by  providing  a  right  to  sue  the  United 
States  on  claims  in  respect  of  which  "the  party  would  be  entitled  to 
redress  against  the  United  States  ...  if  the  United  States  were 
suable,"  was  held  to  give  an  assignor  the  right  to  sue  the  Government 
in  his  own  i^iame.^ 

The  court  of  commissioners  of  Alabama  claims  held  that  any  assign- 
ment made  softer  the  Act  of  1882,  reestabUshing  the  court,  was  void,* 
but  implied  that  one  made  prior  to  the  Act  of  1882  was  not  within 
the  inhibitions  of  the  Act  of  1853,  prohibiting  assignments.''  An  inter- 
national claim  of  a  citizen  of  France  against  the  United  States  was 
in  the  Camy  case  held  as  not  subject  to  the  prohibition  against  assign- 
ment contained  in  the  Act  of  1853.® 

It  need  hardly  be  emphasized  that  any  defect  in  the  claim  or  in 

and  of  its  interpretatioi"!  by  courts  and  accounting  officers  is  discussed  by  E.  I,  Renick 
in  an  article  "Assignitent  of  government  claims,"  24  American  Law  Rev.  (1890), 
442-456;  876-877. 

1  U.  S.  V.  GiUis,  95  L .  S.  407;  Cote  v.  U.  S.,  3  Ct.  CI.  64.  But  see  Lawrence  v. 
U.  S.,  8  Ct.  CI.  252. 

2  Erwin  v.  U.  S.,  97  U.  S.  393,  397;  Goodman  v.  Niblack,  102  U.  S.  556  {dictum); 
Butler  V.  Goreley  (1892),  146  U.  S.  303,  312;  Redfield  i>.  U.  S.,  27  Ct.  CI.  393.  It 
has  no  application  to  the  equitable  doctrine  of  subrogation.  U.  S.  v.  American  To- 
bacco Co.,  166  U.  S.  468. 

3  Emmons  v.  U.  S.,  48  ¥*jd.  43.    See  also  U.  S.  v.  Jones,  131  U.  S.  1. 

*  Stevens  v.  U.  S.,  No.  ^5,  class  2,  Moore's  Arb.  4680.  See  also  Manning  v. 
Leighton,  26  Atl.  258,  260  and  cases  cited.  See  also  Howes  v.  U.  S.,  24  Ct. 
CI.  170. 

^  See  Mr.  Moore's  account  Jn  Moore's  Arb.  4680. 

« Camy  (France)  v.  U.  S.,  J«n.  15,  1880,  Moore's  Arb.  2398;  Boutwell's  Rep.  105. 
The  Act  of  1853  was  also  co^iisidered  inapplicable  to  a  claim  against  the  Chinese 
indemnity  fund.    Hubbell  v.  U.  6.,  15  Ct.  CI.  546. 


ASSIGNEES    IN    BANKRUPTCY  641 

the  original  claimant  cannot  be  purged  by  the  transfer  of  the  claim 
to  an  assignee  or  successor  personally  in  good  standing.^ 

§  293.  Assignees  in  Bankruptcy. 

Assignees  in  bankruptcy  are  regarded  as  purchasers  for  value,  hav- 
ing the  legal  title  to  a  claim  and  the  right  to  sue  thereon  in  their  own 
name  to  the  exclusion  of  the  assignor  debtor.^  In  the  Ruty  case  ' 
before  the  French-American  commission  of  1880,  the  effect  of  the  local 
law  of  the  United  States  was  recognized  as  permitting  the  passage 
of  an  international  claim  from  the  claimants  to  the  assignees  in  bank- 
ruptcy. In  the  Christern  case,  before  the  German- Venezuelan  com- 
mission of  1903,  it  was  held  that  the  nationahty  of  the  assignee  in 
bankruptcy,  and  not  that  of  the  insolvent  debtors,  governed  the  juris- 
diction of  the  commission.^ 

The  court  of  commissioners  of  Alabama  claims  held  that  claims  of 
the  first  or  the  second  class  and  particularly  war-premium  and  excul- 
pated cruiser  claims  passed  to  the  assignee  by  an  assignment  in  bank- 
ruptcy or  insolvency  or  by  a  general  assignment  for  the  benefit  of 
creditors.^  The  Court  of  Claims,  under  the  Abandoned  or  Captured 
Property  Act,  has  held  that  an  assignment  passed  legal  title  to  the 
assignee  in  bankruptcy,^  who  may  sue  on  the  claim  in  his  own  name.^ 
Under  the  provisions  of  the  Act  of  1891,  making  appropriations  for 
French  Spoliation  awards,^  it  has  already  been  observed  that  in  cases 
where  the  original  sufferers  were  adjudicated  bankrupts,  awards  were 

1  Robinson  (U.  S.)  v.  Mexico,  Act  of  March  3,  1849,  Moore's  Arb.  2389;  Dimond 
(U.  S.)  V.  Mexico,  ibid.  2386;  Young  (U.  S.)  v.  Mexico,  ibid.  2753. 

*  Christern  and  Co.  (Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  597,  598; 
Parrott  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  3009-3011  (assignor  held 
divested  of  all  title). 

» Ruty  (France)  v.  U.  S.,  Jan.  15,  1880,  Boutwell's  Rep.  108;  Moore's  Arb.  2401. 

*  Ralston,  597.  One  of  the  insolvent  debtors  was  a  Dane,  but  as  the  assignee  in 
bankruptcy  was  a  German,  the  commission  took  jurisdiction.  Inasmuch  as  the 
protocol  did  not  give  jurisdiction  over  claims  "owned"  by  Germans,  the  award  is 
open  to  question  as  in  conflict  with  the  rule  that  claims  must  be  national  in  origin 
and  continuously  national  in  ownership. 

*  Moore's  Arb.  4679,  4682.    See  cases  in  municipal  courts  cited  in  note  2,  p.  4679. 
« Erwin  v.  U.  S.,  13  Ct.  CI.  49,  97  U.  S.  392. 

7  Burke  v.  U.  S.,  13  Ct.  CI.  231;  Person  v.  U.  S.,  8  Ct.  CI.  543.  Probably  the  as- 
signee could  also  sue  in  the  name  of  his  assignor,  as  in  Morgan  v.  U.  S.,  14  Ct.  CI.  319. 

8  26  Stat.  L.  908. 


642  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

to  be  made  "on  behalf  of  the  next  of  kin  instead  of  to  assignees  in 
bankruptcy."  ^  It  has  also  been  noted  that  the  inhibitions  of  the 
Act  of  1853  against  the  assignment  of  claims  against  the  United  States 
does  not  apply  to  assignees  in  bankruptcy  or  insolvency.-  As  between 
the  bankrupt  and  the  assignee  in  bankruptcy,  the  protocol,  the  rules  of 
the  commission,  or  the  statute  creating  the  commission  usually  provide 
who  shall  verify  the  petition. 

§  294.  Receivers. 

Receivers  and  liquidators  of  bankrupts  have  in  international  law 
practically  the  same  legal  position  as  assignees.  Citizenship  of  the 
bankrupt  and  of  the  receiver  or  liquidator  has  been  held  a  jurisdictional 
prerequisite  by  international  tribunals.^  Disqualifications  of  the 
bankrupt,  e.  g.,  unneutral  conduct,  disloyalty  or  any  other  impairment 
of  his  right  to  claim,  affect  equally  the  right  of  the  receiver.^  His  right, 
as  legal  successor,  to  prosecute  the  claims  of  the  bankrupt  is  fully 
admitted.^  He  cannot,  however,  prosecute  the  international  claims 
of  individual  creditors  of  the  bankrupt,  for  after  the  receiver  has  been 
appointed,  no  individual  credit  of  the  total  estate  is  the  property  of 
any  one  creditor.  The  receiver  merely  acts  as  administrator  of  the 
property  of  the  bankrupt.® 

BENEFICIAL   OR   EQUITABLE   OWNERS 

§  295.  Equitable  American  Interest  Protected. 
That  the  Department  of  State  in  its  diplomatic  support  of  claims 

^  Supra,  p.  639.  To  the  effect  that  next  of  kin  may  prosecute  claim,  if  assignees 
fail  to  do  so,  see  Ship  Jane,  Buchanan  v.  U.  S.,  24  Ct.  CI.  74. 

2  Supra,  p.  640. 

3  Chauncey  (U.  S.)  v.  Chile,  May  24,  1897,  No.  4,  Report,  1901,  p.  22;  Brewer, 
Moller  and  Co.  (Germany)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  597;  Baasch  and 
Romer  (Netherlands)  v.  Venezuela,  Feb.  28,  1903,  ibid.  906.  But  see  Christern 
(Germany)  v.  Venezuela,  Feb.  13,  1903,  ibid.  .598,  where  the  liquidator's  citizenship 
alone  was  held  to  govern. 

*  See,  e.  v..  Accessory  Transit  Co.  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  Moore's  Arb. 
1558,  1560. 

^  For  a  contrary  decision  of  the  Court  of  Claims,  see  Howes  v.  U.  S.,  24  Ct.  CI. 
170;  cf.,  however,  Redfield  v.  U.  S.,  27  Ct.  CI.  393,  and  Borcherling  v.  U.  S.,  35  Ct.  CI. 
311,  185U.  S.  223. 

«  Bance  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  172;  Morris'  Rep.  383.  See 
also  The  Alsop  Claims  (U.  S.)  v.  Peru,  Jan.  12,  1863,  Moore's  Arb.  1627. 


CREDITORS  543 

looks  to  the  citizenship  of  the  real  or  equitable  owner  of  the  claim  as 
distinguished  from  the  nominal  or  ostensible  owner  appears  from  the 
sections  on  corporations,  administrators  and  assignees.  It  is  not  pos- 
sible to  posit  any  definite  rule,  but  it  may  be  said  that  the  equitable 
American  interest  in  property  abroad,  whether  on  the  part  of  creditors, 
mortgagees,  stockholders  or  other  persons  with  special  or  derivative 
rights,  has  often  led  the  Department,  in  the  exercise  of  its  discretion,  to 
use  good  offices  for  their  protection,  although  the  record  title  may 
have  been  vested  in  an  alien.  In  the  case  of  vessels  flying  a  foreign 
flag,  however,  the  strict  rule  is  applied  that  the  state  of  the  flag  is 
presumed  to  undertake  the  international  protection  of  the  vessel. 

In  the  United  States- Venezuelan  commission  of  1903,  Umpire  Barge 
held  that  the  beneficial  owner  actually  "owned"  the  claim  and  properly 
appeared  as  the  claimant.^ 

The  Court  of  Claims  in  its  awards  under  the  Abandoned  or  Cap- 
tured Property  Act  ^  and  under  the  French  Spoliation  Act  ^  held  that 
the  record  title  was  not  conclusive,  but  that  the  equitable  owner  could 
establish  his  equitable  ownership  before  the  court. 

§  296.  Creditors. 

Those  having  a  beneficial  interest  in  a  claim  are  frequently  creditors, 
and  the  Department  of  State  in  the  prosecution  of  claims  takes  account 
of  the  equitable  interests  of  American  creditors. 

As  a  jurisdictional  matter,  the  decisions  of  arbitral  commissions 
have  in  some  cases  been  against  and  in  others  in  favor  of  the  right 
of  American  creditors  of  an  alien  to  claim  as  the  real  sufferers  from 
violations  of  the  property  rights  of  their  alien  debtors.  The  Spanish- 
American  commission  under  the  treaty  of  1871  held  in  several  cases 
that  injuries  upon  the  property  of  a  Spanish  subject  gave  his  American 

1  Heny  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  14,  23.  See  also  Alvarez 
(U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  1353,  to  the  effect  that  the  person  who 
had  the  "right  to  the  award"  must  be  considered  the  "real  claimant,"  and  must 
be  a  citizen.  See  also  Wiltz,  Adm.  (France),  v.  U.  S.,  Jan.  15,  1880,  ibid.  2246,  and 
Texas  Star  v.  U.  S.,  Act  of  June  23,  1874,  ibid.  2360,  2366. 

»  Hall  V.  U.  S.,  11  Ct.  CI.  704;  Cones  v.  U.  S.,  8  Ct.  CI.  421. 

» Van  Wagenen  v.  U.  S.,  25  Ct.  CI.  110. 


544  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

creditors  no  right  to  appear  before  the  commission  as  claimants.^ 
It  may  well  be  that  the  American  injury  was  considered  too  remote. 
In  the  Bance  case  before  the  American-Venezuelan  commission  of 
1903,  the  American  creditors  of  a  bankrupt  Venezuelan  were  not 
recognized  as  individual  claimants  when  a  receiver  in  bankruptcy 
representing  all  the  creditors  had  been  appointed.^ 

On  the  other  hand,  American  intervenors  in  a  claim,  basing  their 
right  to  a  share  in  the  award  upon  their  position  as  creditors  of  the 
original  claimant  in  the  transaction  out  of  which  the  claim  arose, 
were  protected  as  to  their  proportionate  interest  by  the  umpire  of 
the  American- Venezuelan  commission  in  the  Turini  case,  the  original 
claimant  having  died  and  his  administratrix  appearing  as  the  claimant 
of  record.^  The  repeated  expressions  of  arbitral  commissions,  in  cases 
where  the  original  claimant  had  died,  to  the  effect  that  the  adminis- 
trator and  not  the  heir  should  appear  as  the  party  claimant,  is  often 
founded  on  the  express  ground  that  creditor  beneficiaries  of  an  award 
should  be  protected.*  In  some  cases,  it  has  been  expressly  stated 
that  the  beneficiaries  of  an  award,  be  they  heirs  or  creditors,  must 
prove  their  citizenship.^  It  is  evident  that  creditors'  interests,  where 
possible,  have  usually  been  protected. 

Under  the  Indian  Depredation  Act  of  1891,  assignees  and  creditors 
of  the  claimant  were  held  to  have  no  rights.^    The  intent  of  the  French 

1  Mora  and  Arango  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2336;  Benner, 
ibid.  2335;  Rodriguez,  ibid.  2336. 

2  Bance  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  172. 

'  Turini  (U.  S.)  v.  Venezuela,  ibid.  51,  62.  In  the  Alsop  claim  against  Chile,  Dec.  1, 
1909,  Award  July  5,  1911,  it  seems  that  American  and  even  Chilean  creditors  were 
permitted  to  share  in  the  award,  the  award  being  made  without  inquiry  into  the 
nationality  of  the  ultimate  recipients. 

*  Wiltz,  Adm.  (France),  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2244,  2248;  Baynum 
(U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  1271;  supra,  p.  633. 

sWulff  (U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  1354;  Wiltz  (France)  v. 
U.  S.,  Jan.  15,  1880,  ibid.  2246.  See  also  Kane's  notes  on  .  .  .  questions  decided 
by  .  .  .  Commissioners  under  convention  with  France,  July  4,  1831,  Phila.,  1836, 
p.  21.  It  seems  that  while  equitable  owners  had  to  prove  their  citizenship,  assignees 
for  the  benefit  of  creditors  were  excused  from  proving  the  citizenship  of  the 
creditors. 

«  Labadie  v.  U.  S.,  32  Ct.  CI.  368.  But  see  McKenzie  v.  U.  S.,  34  Ct.  CI.  278,  285, 
and  dissenting  opinion  of  Nott,  J.,  287. 


MORTGAGEES  645 

Spoliation  Acts  was  to  benefit  the  next  of  kin  of  the  original  sufferers, 
and  to  exclude  creditors,  legatees  and  assignees.^ 

§  297.  Mortgagees. 

Mortgagees  are  secured  creditors  in  a  special  sense.  A  mortgage 
is  in  form  a  conveyance,  vesting  in  the  mortgagee  upon  its  execution 
a  conditional  estate,  which  becomes  absolute  upon  breach  of  the  con- 
dition.- The  Department  of  State  in  the  exercise  of  its  discretion 
has  on  several  occasions  exercised  good  offices  on  behalf  of  the  equita- 
ble interest  of  American  mortgagees  of  foreign-owned  property.  This 
has  been  particularly  true  of  American  bondholder-mortgagees  of 
foreign  railroads. 

International  commissions  by  weight  of  authority  have  shown 
a  disinclination  to  allow  American  mortgagees  to  appear  as  claimants 
for  damages  arising  out  of  injuries  to  the  property  of  their  debtor 
mortgagors.  This  conclusion  may  be  defended  on  the  ground  that 
the  mortgagee  is  too  indirectly  affected  by  such  injury  to  authorize 
his  appearance  as  a  claimant.  In  the  case  of  Rodriguez  before  the 
Spanish-American  Claims  Commission  of  1871,  the  embargo  of  an 
estate  which  was  mortgaged  to  the  claimant,  an  American  citizen, 
but  of  which  he  had  neither  the  legal  title  nor  possession,  was  held 
to  afford  no  ground  for  a  claim  of  damages.^  A  similar  result  was 
reached  by  the  British- American  commission  of  1871,  on  the  claim 
of  a  British  mortgagee  of  property  destroyed  by  the  United  States 
army.'*  On  the  other  hand,  this  same  commission  allowed  the  claim  of 
the  mortgagee  of  a  British  vessel  wrongfully  captured  by  a  United  States 
cruiser  during  the  Civil  War,  and  subsequently  condemned  and  sold.' 

1  Blagge  V.  Balch,  162  U.  S.  439,  31  Ct.  CI.  460;  Van  Wagenen,  Adm.,  v.  U.  S.,  31 
Ct.  CI.  175,  in  which,  however,  it  was  said,  as  dictum,  that  under  certain  possible 
conditions,  creditors,  as  beneficiaries  under  a  deed  of  trust,  may  have  a  claim  upon 
the  recovery. 

2  Hutchins  v.  King,  1  Wall.  53,  57. 

'  Rodriguez  (U.  S.)  v.  Spain,  Feb.  12, 1871,  Moore's  Arb.  2336. 

*  Bain  (Gt.  Brit.)  v.  U.  S.,  No.  231,  May  8,  1871,  MSS.  inserted  in  briefs  of  Spanish 
Treaty  Claims  Com.  VI,  243-247. 

*  H.  J.  Barker,  mortgagee,  No.  432,  and  Overend,  Gurney  and  Co.,  mortgagees, 
No.  433  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's  Rep.  141-148.  See  also  the  Texa* 
Star  •„.  U.  S.,  Act  of  June  23,  1874,  Moore's  Arb.  2360,  2366. 


640  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

In  the  Heny  case/  it  has  been  noted  that  the  equitable  owner  of 
injured  property  was  considered  the  real  claimant,  and,  as  will  pres- 
ently be  observed,  insurers  of  unlawfully  condemned  vessels  and  car- 
goes have  often  received  awards  from  international  commissions. 

Numerous  claims  were  brought  before  the  recent  Spanish  Treaty 
Claims  Commission  arising  out  of  damages  for  injuries  done  to  the 
property  of  a  Spanish  subject  on  which  the  claimant,  an  American 
citizen,  held  a  mortgage  or  lien  of  some  kind.  Claimants  contended 
that  this  injury  to  the  equitable  interest  of  an  American  citizen  made 
Spain  liable,  whereas  the  Government  contended  that  the  release 
by  Spain  of  the  liability  of  the  United  States  to  the  mortgagor  also 
released  any  claim  of  mortgagees,  upon  whom  the  release  is  conclusive 
and  binding,  and  moreover  that  the  mortgagee's  loss  is  too  indirect 
to  give  him  a  standing  before  the  commission.  The  Commission  does 
not  appear  to  have  definitely  disposed  of  this  question,  although  claims 
of  mortgagees  were  apparently  all  disallowed  on  the  merits.^ 

§  298.  Insurers. 

The  question  of  the  right  of  insurers  to  appear  as  claimants  has 
on  many  occasions  been  presented  for  determination  to  the  Depart- 
ment of  State  and  to  special  and  general  claims  commissions.  Its 
relation  to  the  question  of  citizenship  either  on  the  part  of  insured 
or  insurer  has  served  to  make  it  an  exceedingly  complicated  matter, 
and,  as  will  be  seen,  the  decisions  of  arbitral  commissions  afford  little 
aid  in  arriving  at  definite  rules. 

The  object  of  the  contract  of  insurance  is  admitted  to  be  indemnity 
to  the  insured,  the  consideration  to  the  insurer  being  the  premium 
received  and  his  hope  of  recovery,  should  a  loss  occur,  his  spes  recuper- 
andi.  When  the  insurance  money  is  paid  by  the  insurer,  whethei 
the  loss  has  been  total  or  partial,  and  whether  or  not  there  has  been 
abandonment,  the  insurer  so  far  stands  in  the  place  of  the  assured 
that  he  is  entitled  to  recover  whatever  compensation  for  the  loss  the 
assured  may  be  able  to  recover  from  any  third  party.^    The  insurer 

'  Supra,  p.  643. 

*  Special  Rep.  of  William  E.  Fuller,  1907,  p.  31 ;  Brief  of  the  Government,  October  1, 
1903,  Briefs  VI,  165-242;  Claimant's  briefs,  ildd.  VI,  1-164. 

'  These  general  principles  of  insurance  law  arc  supported  by  the  authorities  and 


AMERICAN    INSURERS   OF    FOREIGN    PROPERTY  647 

is  subrogated  to  the  rights  of  the  insured,  which  relate  back  to  the 
time  of  the  loss. 

This  view  of  the  legal  position  of  insurers  has  not  always  received 
support  from  tribunals  acting  under  international  treaties.  Adhering 
to  the  general  rule,  the  commissioners  under  the  treaty  of  July  4,  1831 
with  France  permitted  insurers  to  claim  the  amounts  they  had  paid, 
without  regard  to  the  question  whether  the  loss  was  total  or  partial, 
and  their  right  to  claim,  by  analogy  to  the  case  of  abandonment,  was 
held  to  attach  from  the  moment  when  the  loss  occurred,  i.  e.,  when 
their  liability  ceased  to  be  contingent.  The  commissioners  under 
the  Florida  treaty  of  1819,  however,  regarded  insurers  as  assignees, 
and  recognized  them  as  claimants  only  when  they  were  entitled  to 
a  cession  from  the  assured,  i.  e.,  only  when  they  had  paid  for  a  total 
loss.^ 

§  299.  American  Insurers  of  Foreign  Property. 

One  of  the  first  problems  which  the  international  position  of  in- 
surers presents,  is  whether  the  American  insurer  of  foreign  property 
destroyed  or  injured  under  circumstances  rendering  a  foreign  govern- 
ment liable  for  the  loss  is  entitled,  after  paying  the  insurance,  to  the 
protection  of  the  United  States  in  prosecuting  an  international  claim. 
The  question  has  usually  arisen  in  cases  of  marine  insurance.  Where 
there  has  been  abandonment  and  payment  as  for  a  total  loss,  there 
seems  little  doubt  that  the  insurer  is  the  person  directly  to  suffer  by 
the  international  wrong,  and  it  is  a  logical  rule  that  the  right  of  in- 
demnity is  vested  in  the  party  who  has  been  substantially  injured 
by  the  act  of  the  foreign  government. 

The  Department  of  State  has  on  several  occasions  taken  this  view- 
by  the  Supreme  Court.  Phillips,  W.,  A  treatise  on  the  law  of  insurance,  5th  ed., 
Boston,  1895,  §§  1722-1723;  Hall  v.  Raikoad,  13  Wall.  367;  Holbrook,  Adm.,  v.  U.  S., 
21  Ct.  CI.  434,  437. 

*  Kane's  notes  on  some  of  the  questions  decided  by  the  commissioners  under  the 
convention  with  France,  July  4,  1831,  Philadelphia,  1836,  pp.  24-25.  See  also 
Gracie  v.  N.  Y.  Insurance  Co.,  8  Johns.  237,  245.  That  an  assignment  or  cession  is 
unnecessary  to  transfer  the  insured's  rights  to  the  insurer  was  held  in  Comegys  v. 
Vasse,  1  Pet.  193.  See  authorities  reviewed  in  Holbrook  v.  U.  S.,  21  Ct.  CI.  434, 
437  el  seq.;  Mechanic  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3212. 


G48  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

?ind  made  representations  to  foreign  governments  on  behalf  of  Amer- 
ican insurers  of  foreign-owned  property.  Courts  sitting  as  interna- 
tional commissions  have  been  far  from  unanimous,  however,  in  de- 
ciding this  question.  The  commissioners  under  the  Florida  treaty 
decided  that  they  would  not  receive  the  claims  of  American  under- 
writers who  had  insured  the  property  of  foreigners,  which  had  been 
illegally  taken  by  France  or  Spain,^  A  somewhat  similar  view,  under 
which  the  right  of  insurers  was  held  to  be  governed  by  the  international 
rights  of  the  insured,  was  taken  by  the  Court  of  Claims  in  several 
French  Spoliation  cases.  Where  the  property  captured  by  the  French 
was  British  and  legally  subject  to  condemnation  as  enemy  property, 
no  right  against  France  could  pass  to  an  American  insurer,  for  it  was 
held  that  insurers  fcould  have  no  higher  standing  in  court  than  the 
owners  whom  they  insured.^ 

On  the  other  hand,  the  nationality  of  the  insurers  alone,  regardless 
of  that  of  the  insured  was  in  several  cases  held  to  govern  the  jurisdic- 
tion of  the  tribunal.  For  example,  in  the  claim  of  the  Circassian  be- 
fore the  British-American  commission  of  1871,  which  had  jurisdiction 
of  claims  "growing  out  of  injuries  to  the  person  and  property  of  British 
subjects,"  the  claim  of  British  insurers  of  French  confiscated  cargo 
was  allowed.^  Standing  was  also  accorded  by  Commissioner  Little 
of  the  Venezuelan-American  commission  of  1885  to  the  American 
insurers  of  Mexican  property,  which  was  alleged  to  have  been  illegally 
condemned  by  Venezuela.^ 


1  Moore's  Arb.  4516. 

2  Brig  William,  Haskins  v.  U.  S.,  23  Ct.  CI.  201 ;  Schooner  Vandeput  v.  U.  S.,  37 
Ct.  CI.  396.  This  is  probably  good  law  as  to  the  insurer's  substantive  rights.  On 
the  question  of  jurisdictional  citizenship,  a  contrary  view  has  been  taken.    See  note  4. 

3  The  Circassian  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3911,  3920,  Hale's 
Rep.  141,  147.  See  also  claim  of  Caroline,  a  wrongfully  condemned  Peruvian  bark 
insured  by  American  underwriters  (U.  S.)  v.  Brazil,  Moore's  Dig.  VI,  748,  Moore's 
Arb.  1342. 

*  Mechanic  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3210,  3212.  (The 
claim  was  disallowed  on  the  merits.)  See  also  Mechanic  (U.  S.)  v.  Ecuador,  Nov.  25, 
1862,  ibid.  3221,  in  which  Hassaurek  made  an  award  on  the  merits.  See  also  the 
case  of  the  ship  Catherine,  No.  513  (American  insurer  of  illegally  condemned  British 
property),  against  France,  in  which  claim  was  allowed,  cited  in  Brig  William,  23  Ct. 
CI.  201,  206. 


FOREIGN   INSURERS   OF   AMERICAN    PROPERTY  649 

§  300.  Foreign  Insurers  of  American  Property. 

Foreign  insurers  of  American  property  have  occasionally  received 
the  indirect  protection  of  the  United  States  through  the  claim  made 
on  behalf  of  the  owners  of  the  property.  It  is  open  to  question,  how- 
ever, whether  in  the  absence  of  a  special  treaty,  they  would  be  per- 
mitted directly  to  share  in  the  distribution  of  any  indemnity  which 
might  be  received  from  the  foreign  government.  Under  their  legal 
rights  as  insurers,  they  would,  of  course,  have  a  right  of  action  against 
the  insured  for  any  loss  which  they  had  paid,  and  for  which  the  in- 
sured was  indemnified  b}^  a  foreign  government.  Under  these  cir- 
cumstances, and  considering  that  the  flag  of  a  vessel  usually  protects 
the  cargo  as  well,  it  might  conceivably  happen  that  foreign  insurers 
of  foreign-owned  cargo  on  an  American  vessel  might  indirectly  share 
in  the  distribution  of  an  international  indemnity.  The  second  court 
of  commissioners  of  Alabama  claims,  under  an  Act  giving  standing 
to  those  who  were  entitled  to  the  "protection  of  the  United  States 
in  the  premises,"  held  that  a  British  insurance  company  doing  business 
exclusively  in  Great  Britain  could  not  appear  as  a  claimant  to  the  fund.^ 

Insurers  have  in  most  cases  been  given  an  independent  standing 
before  international  commissions,  based  upon  their  own  nationality, 
without  having  to  prove  the  nationality  of  the  assured.^  The  insurers, 
therefore,  have  generally  claimed  in  their  own  names.^  In  the  claim 
of  Gerard  before  the  British-American  commission  of  1871,  a  conten- 
tion that  the  contract  of  insurance  covered  an  illegal  object  was  appar- 
ently not  given  consideration.^ 

Inasmuch  as  no  written  opinion  was  handed  down,  no  explanation 
can  be  given  for  the  disallowance  by  the  Swedish- Venezuelan  commis- 

'  Bischoff  et  al.  v.  U.  S.,  No.  5693,  class  1,  Moore's  Arb.  4672.  Foreign  insurers 
were  excluded  by  their  alienage  from  any  participation  in  the  fund  under  the  treaty 
of  1831  with  France,  Moore's  Arb.  4481. 

^  The  important  exception  made  to  this  rule  by  the  commissioners  under  the 
Florida  treaty,  who  required  proof  of  American  citizenship  by  insured  and  insurer, 
has  already  been  noted.    Moore's  Arb.  4516;  supra,  p.  648. 

'  Hubbell  V.  U.  S.,  15  Ct.  CI.  546  (underwriters  who  had  paid  losses  sustained  by 
reason  of  the  capture  and  plunder  of  a  vessel  and  cargo  by  Chinese  pirates  partici- 
pated in  the  Chinese  indemnity  fund);  Holbrook,  Adm.,  v.  U.  S.,  21  Ct.  CI.  434, 
442;  The  Sir  William  Peel,  Gerard  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb. 
39.35,  3948;  The  Mechanic  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  ibid.  3210,  3212. 

♦  Moore's  Arb.  3935,  3946,  3948. 


650  THE    DIPLOMATIC    PROTECTION    Oi''    CITIZENS    ABKOAi> 

sion  of  1903  of  the  claim  of  the  Ydun  Life  Insurance  Co.,  arising  out 
of  a  policy  paid  to  the  widow  of  Captain  Meling,  who  had  been  killed 
by  an  act  of  Venezuelan  authorities,  and  for  whose  death  the  commis- 
sion had  made  an  award  to  the  widow.  ^ 

§  301.  Provisions  of  Federal  Statutes. 

Special  provisions  as  to  the  rights  of  insurers  have  been  contained 
in  various  statutes  permitting  suits  against  the  United  States  arising 
out  of  international  claims.  For  example,  §  12  of  the  Act  of  June  23, 
1874,  establishing  the  first  court  of  Alabama  claims,  limited  the  right 
of  recovery  of  an  insurer  to  so  much  of  his  losses,  in  respect  of  his  war 
risks,  as  "exceeded  the  sum  of  .  .  .  his  premiums  or  other  gains  upon 
or  in  respect  to  such  war  risks."  -  The  Act  of  March  3,  1899,^  to  the 
effect  "that  any  French  Spoliation  claim  appropriated  for  in  this  act 
shall  not  be  paid  if  held  by  assignment  or  owned  by  an  insurance  com- 
pany" was  held  to  be  a  direction  to  and  restriction  upon  the  Secretary 
of  the  Treasury.^  This  restriction  has  been  renewed  in  the  subsequent 
omnibus  claims  appropriation  acts  of  1902  and  1905,  but  there  seems 
no  valid  reason  why  the  claims  of  insurance  companies  should  be 
excluded  from  payment  in  view  of  the  fact  that  private  insurers  and 
underwriters  have  been  paid,  that  insurance  companies  received  pay- 
ment under  the  appropriation  act  of  March  3,  1891,  and  that  insurance 
companies  apparently  received  indemnities  for  spoliations  under  the 
treaty  of  1819  with  Spain,  under  the  treaty  of  1830  with  Denmark, 
under  the  treaty  of  1831  with  France  and  under  the  treaty  of  1832 
with  the  Two  Silicies.^ 

•  Meling  (Sweden)  v.  Venezuela,  March  10,  1903,  Ralston,  954. 

2  Davis'  Rep.,  Sen.  Ex.  Doc.  21,  44th  Cong.,  2nd  sess.  (1877),  22-23,  115-117. 
The  same  rule  seems  to  have  been  applied  by  the  second  court  under  the  act  of  1882. 
Moore's  Arb.  4678.  This  same  section  12  (18  Stat.  L.  247),  limited  recovery  to 
insurance  companies  lawfully  existing  at  the  time  of  the  loss  under  the  laws  of  one 
of  the  U.  S.  Nor  was  a  claim  admissible,  when  the  injured  party  or  his  assignee  or 
representative  had  received  indemnity  from  an  insurer,  unless  the  Joss  exceeded 
the  insurance. 

5  30  Stat.  L.  1205. 

*  Ship  Juliana,  35  Ct.  CI.  400.    See  23  Op.  Atty.  Gen.  (Griggs),  179. 

^  S.  Ex.  Doc.  74,  49th  Cong.,  Ist  sess.,  cited  in  Hearings  before  House  Committee 
on  Claims  on  H.  R.  22534,  Gist  Cong.,  2nd  sess.,  March  30,  1910,  statements  <7f 
J.  Henry  Scattergood,  pp.  45-46. 


PART  IV 

LIMITATIONS  ON  DIPLOMATIC  PROTECTION 

It  will  now  be  proper  to  consider  the  various  classes  of  facts,  acts 
and  considerations  which  operate  as  conditions,  qualifications  and 
limitations  upon  the  right  to  diplomatic  protection  and  the  prosecu- 
tion and  recovery  of  international  claims.  These  limitations  on  pro- 
tection will  be  discussed  under  five  broad  divisions,  namely,  those 
arising  (1)  out  of  conditions  prescribed  by  the  claimant's  own  govern- 
ment; (2)  out  of  acts  of  the  party  claimant;  (3)  out  of  the  subject-matter 
of  the  claim;  (4)  out  of  public  policy;  and  (5)  out  of  the  municipal 
legislation  of  the  defendant  government. 

CHAPTER  I 

CONDITIONS  PRESCRIBED  BY  THE  CLAIMANT'S  OWN 
GOVERNMENT 

§  302.  Obligations  of  the  Person  Claiming  Protection. 

Before  a  person  receives  the  protection  of  the  United  States,  the 
Department  of  State  must  be  satisfied  that  the  individual  is  properly 
entitled  to  American  protection,  and  has  complied  with  the  condi- 
tions required  for  its  extension.  Within  the  terms  of  the  protocols 
and  treaties  under  which  they  operate,  international  tribunals  apply 
the  same  rule. 

The  first  condition  of  protection  is,  obviously,  proof  of  bona  fide 
citizenship.  The  substantive  elements  of  citizenship  have  received 
consideration  in  Part  III,  and  attention  will  therefore  be  given  here 
to  the  more  formal  conditions  imposed  by  the  government  upon  an 
applicant  for  protection. 

The  applicant  for  a  passport,  under  the  rules  governing  the  grant- 

651 


652  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

ing  and  issuing  of  passports  of  January  12,  1915/  must  meet  various 
requirements,  e.  g.,  he  must  make  a  written  application,  in  the  form 
of  an  affidavit,  to  the  Secretary  of  State,  duly  attested,  setting  forth 
the  date  and  place  of  his  birth,  his  occupation,  the  place  of  his  perma- 
nent residence,  and  within  what  length  of  time  he  will  return  to  the 
I'nited  States  for  permanent  residence.  He  must  take  the  oath  of 
allegiance,  and  give  a  detailed  physical  description  of  his  person.  The 
applicant's  identity  must  be  established  by  the  certificate  of  a  credible 
witness.  Further  particulars  are  required  from  naturalized  citizens 
and  their  children  claiming  citizenship  through  the  parent's  naturaliza- 
tion, from  persons  born  in  the  United  States  of  Chinese  parents,  or 
born  abroad  of  native  American  fathers,  from  women,  and  from  resi- 
dents of  an  insular  possession  of  the  United  States.  A  prescribed 
fee  of  one  dollar  must  be  paid.  As  already  observed,^  the  applicant 
for  a  declarant's  passport  must  show  that  he  has  resided  in  the  United 
States  at  least  three  years,  that  he  is  not  yet  eligible  for  naturaliza- 
tion, that  at  least  six  months  have  elapsed  since  his  declaration  of 
intention,  that  he  has  not  previously  obtained  a  similar  passport, 
that  a  special  and  imperative  exigency  requires  his  absence  from  the 
United  States  and  that  since  his  declaration  of  intention  he  has  not 
applied  to  any  other  government  for  a  passport.^ 

Before  a  diplomatic  claim  on  behalf  of  a  citizen  is  presented  to  any 
foreign  government,  the  Department  of  State  requires  the  claimant 
to  make  out  a  prima  facie  case  warranting  interposition.'*  In  first 
instance,  therefore,  the  Department,  upon  receipt  of  a  claim  against 
a  foreign  government,  acts  in  a  quasi-judicial  capacity,  and  it  may 
be  said  that  far  more  claims  are  rejected  than  prosecuted.  The  De- 
partment does  not  possess  the  facilities  or  machinery  for  a  regular 
judicial  inquiry  into  the  merits  of  a  claim,  and  has  therefore  prescribed 
certain  rules  of  procedure  for  the  submission  by  claimants  of  memorials 
invoking  the  Department's  interposition  in  the  prosecution  of  a  claim 
against  a  foreign  government- 

'  Printed  supra,  §  219. 
'  Supra,  p.  501. 

'  Rules  governing  the  granting  and  issuing  of  passports  to  those  who  have  de- 
clared their  intention  to  become  citizens  of  the  United  States,  November  14,  1913. 
*  See  Moore's  Dig.  VI,  §§  971-972. 


INSTRUCTIONS    FOR    CLAIMANTS    ACAINST    FOREIGN    GOVERNMENTS      653 

For  the  information  of  claimants,  the  Department,  on  March  5, 
1906,  published  a  circular  with  which  claimants  are  advised  to  conform 
as  nearly  as  possible  in  the  submission  of  memorials.  This  circular 
reads: 

§  303.  Instructions  for  Claimants  against  Foreign  Governments. 

"Citizens  of  the  United  States  having  claims  against  foreign  gov- 
ernments, not  founded  on  contract,  in  the  prosecution  of  which  they 
may  desire  the  assistance  of  the  Department  of  State,  should  forward 
to  the  Department  statements  of  the  same,  under  oath,  accompanied 
by  the  proper  proof. 

The  following  rules,  which  are  substantially  those  which  have  been 
adopted  by  commissions  organized  under  conventions  between  the 
United  States  and  foreign  governments,  for  the  adjustment  of  claims 
are  published  for  the  information  of  citizens  of  the  United  States  hav- 
ing claims  against  foreign  governments  of  the  character  indicated  in 
the  above  notification;  and  they  are  advised  to  conform  as  nearly  as 
possible  to  these  rules  in  preparing  and  forwarding  their  papers  to  the 
Department  of  State. 

Each  claimant  should  file  a  memorial,  in  triplicate,  properly  dated, 
setting  forth  minutely  and  particularly  the  facts  and  circumstances 
from  which  the  right  to  prefer  such  claim  is  derived  by  the  claimant. 
This  memorial  should  be  verified  by  his  or  her  oath  or  affirmation. 

All  subsequent  communications  to  the  Department  in  the  nature  of 
statements  of  fact,  arguments,  or  briefs  should  likewise  be  furnished 
in  triplicate. 

The  memorial  and  all  the  accompanying  papers  should  have  a  margin 
of  at  least  one  inch  on  each  side  of  the  page,  so  as  to  admit  of  their 
being  bound  in  volumes  for  preservation  and  convenient  reference; 
and  the  pages  should  succeed  each  other,  like  those  of  a  book,  and  be 
readable  without  inverting  them. 

When  any  of  the  papers  mentioned  in  rule  II  are  knoAMi  to  have 
been  already  furnished  to  the  Department  by  other  claimants,  it  will 
be  unnecessary  to  repeat  them  in  a  subsequent  memorial.  A  particu- 
lar description,  with  a  reference  to  the  date  under  which  they  were 
previously  transmitted,  is  sufficient. 

Nor  is  it  necessary,  when  it  is  alleged  that  several  vessels  have  been 
captured  by  the  same  cruiser,  to  repeat  in  each  memorial  the  circum- 
stances in  respect  to  the  equipment,  arming,  manning,  flag,  etc.,  of 
such  cruiser,  which  are  relied  upon  as  the  evidence  of  the  responsibility 
of  a  foreign  government  for  its  alleged  tortious  acts.  A  simple  refer- 
ence to  and  adoption  of  one  memorial  in  which  such  facts  have  been 
fully  stated  will  suffice. 

It  is  proper  that  the  interposition  of  this  Government  with  the  for- 
eign government  against  which  the  claim  is  presented  should  be  re- 


654  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

quested  in  express  terms,  to  avoid  a  possible  objection  to  the  jurisdic- 
tion of  a  future  commission  on  the  ground  of  the  generaUty  of  the  claim. 
Claims  of  citizens  against  the  Government  of  the  United  States  are 
not  generally  under  the  cognizance  of  this  Department.  They  are 
usually  subjects  for  the  consideration  of  some  other  Department,  or 
of  the  Court  of  Claims,  or  for  an  appeal  to  Congress. 

RULES 

In  every  memorial  should  be  set  forth — 

1.  The  amount  of  the  claim;  the  time  when  and  place  where  it  arose; 
the  kind  or  kinds  and  amount  of  property  lost  or  injured;  the  facts 
and  circumstances  attending  the  loss  or  injury  out  of  which  the  claim 
arises;  the  principles  and  causes  which  lie  at  the  foundation  of  the 
claim, 

2.  For  and  in  behalf  of  whom  the  claim  is  preferred,  giving  Christian 
name  and  surname  of  each  in  full. 

3.  Whether  the  claimant  is  now  a  citizen  of  the  United  States,  and, 
if  so,  whether  he  is  a  native  or  naturalized  citizen  and  where  is  now  his 
domicil;  and  if  he  claims  in  his  own  right,  then  whether  he  was  a  citi- 
zen when  the  claim  had  its  origin  and  where  was  then  his  domicil; 
and  if  he  claims  in  the  right  of  another,  then  whether  such  other  was 
a  citizen  when  the  claim  had  its  origin  and  where  was  then  and  where 
is  now  his  domicil;  and  if,  in  either  case,  the  domicil  of  the  claimant 
at  the  time  the  claim  had  its  origin  was  in  any  foreign  country,  then 
whether  such  claimant  was  then  a  subject  of  the  government  of  such 
country  or  had  taken  any  oath  of  allegiance  thereto. 

4.  Whether  the  entire  amount  of  the  claim  does  now,  and  did  at 
the  time  when  it  had  its  origin,  belong  solely  and  absolutely  to  the 
claimant;  and  if  any  other  person  is  or  has  been  interested  therein,  or 
in  any  part  thereof,  then  who  is  such  other  person  and  what  is  or  was 
the  nature  and  extent  of  his  interest;  and  how,  when,  and  by  what 
means  and  for  what  considerations  the  transfer  of  rights  or  interests, 
if  any  such  was  made,  took  place  between  the  parties. 

5.  Whether  the  claimant,  or  any  other  who  may  at  any  time  have 
been  entitled  to  the  amount  claimed,  or  any  part  thereof,  has  ever 
received  any,  and,  if  any,  what,  sum  of  money  or  other  equivalent 
or  indemnification  for  the  whole  or  any  part  of  the  loss  or  injury  upon 
whi(;h  the  claim  is  founded;  and,  if  so,  when  and  from  whom  the  same 
was  received. 

(i.  All  testimony  should  be  in  writing,  and  upon  oath  or  affirmation, 
duly  administered  according  to  the  laws  of  the  place  where  the  same 
is  taken,  by  a  magistrate  or  other  person  competent  by  such  laws 
to  take  depositions,  having  no  interest  in  the  claim  to  which  the  tes- 
timony relates,  and  not  being  the  agent  or  attorney  of  any  person 
having  such  interest,  and  it  must  be  certified  by  him  that  such  is  the 
case.     The  credibility  of  the  affiant  or  deponent,  if  known  to  such 


RULES  655 

magistrate  or  other  person  authorized  to  take  such  testimony,  should 
be  certified  by  him;  and,  if  not  known,  should  be  certified  on  the  same 
paper  upon  oath  by  some  other  person  known  to  such  magistrate, 
having  no  interest  in  such  claim  and  not  being  the  agent  or  attorney 
of  any  person  having  such  interest,  whose  credibility  must  be  certified 
by  such  magistrate.  The  deposition  should  be  reduced  to  writing  by 
the  person  taking  the  same,  or  by  some  person  in  his  presence  having 
no  interest,  and  not  being  the  agent  or  attorney  of  any  person  having 
an  interest  in  the  claim,  and  should  be  carefully  read  to  the  deponent 
by  the  magistrate  before  being  signed  by  him,  and  this  should  be  cer- 
tified. 

7.  Depositions  taken  in  any  city,  port,  or  place  without  the  limits 
of  the  United  States  may  be  taken  before  any  consul  or  other  public 
civil  officer  of  the  United  States  resident  in  such  city,  port,  or  place, 
having  no  interest,  and  not  being  agent  or  attorney  of  any  person 
having  an  interest  in  the  claim  to  which  the  testimony  so  taken  relates. 
In  all  other  cases,  whether  in  the  United  States  or  in  any  foreign  place, 
the  right  of  the  person  taking  the  deposition  to  administer  oaths  by 
the  laws  of  the  place  must  be  verified. 

8.  Every  affiant  or  deponent  should  state  in  his  deposition  his  age, 
place  of  birth,  residence,  and  occupation,  and  where  was  his  residence 
and  what  v/as  his  occupation  at  the  time  the  events  took  place  in  regard 
to  which  he  deposes;  and  must  also  state  if  he  have  any,  and,  if  any, 
what,  interest  in  the  claim  to  support  which  his  testimony  is  taken; 
and,  if  he  have  any  contingent  interest  in  the  same,  to  what  extent, 
and  upon  the  happening  of  Avhat  event,  he  will  be  entitled  to  receive 
any  part  of  the  sum  which  may  be  awarded.  He  should  also  state 
whether  he  be  the  agent  or  attorney  of  the  claimant  or  of  any  person 
having  an  interest  in  the  claim. 

9.  Original  papers  exhibited  in  proof  should  be  verified  as  originals 
by  the  oath  of  a  witness,  whose  credibility  must  be  certified  as  required 
in  the  sixth  of  these  rules;  but  when  the  fact  is  within  the  exclusive 
knowledge  of  the  claimant  it  may  be  verified  by  his  own  oath  or  affirm- 
ation. Papers  in  the  handwriting  of  anj^one  who  is  deceased  or  whose 
residence  is  unknown  to  the  claimant  may  be  verified  by  proof  of  such 
handwriting  and  of  the  death  of  the  party  or  his  removal  to  places 
unknown. 

10.  All  testimony  taken  in  any  foreign  language  and  all  papers  and 
documents  in  any  foreign  language  which  may  be  exhibited  in  proof 
should  be  accompanied  by  a  translation  of  the  same  into  the  English 
language. 

11.  When  the  claim  arises  from  the  seizure  or  loss  of  any  ship  or 
vessel,  or  the  cargo  of  any  ship  or  vessel,  a  certified  copy  of  the  enroll- 
ment or  registry  of  such  ship  or  vessel  should  be  produced,  together 
with  the  original  clearance,  manifests,  and  all  other  papers  and  docu- 
ments required  by  the  laws  of  the  United  States  which  she  possessed 
on  her  last  voyage  from  the  United  States,  when  the  same  are  in  the 


656  THE   DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

possession  of  the  claimant  or  can  be  obtained  by  him;  and,  when  not, 
certified  copies  of  the  same  should  be  produced,  together  with  his 
oath  or  affirmation  that  the  originals  are  not  in  his  possession  and  can- 
not be  obtained  by  him. 

12.  In  all  cases  where  property  of  any  description  for  the  seizure 
or  loss  of  which  a  claim  has  been  presented  was  insured  at  the  time  of 
such  seizure  or  loss,  the  original  policy  of  insurance,  or  a  certified  copy 
thereof,  should  be  produced. 

13.  If  the  claimant  be  a  naturalized  citizen  of  the  United  States, 
a  copy  of  the  record  of  his  naturalization,  duly  certified,  should  be  pro- 
duced. 

14.  Documentary  proof  should  be  authenticated  by  proper  certifi- 
cates or  by  the  oath  of  a  witness. 

15.  If  the  claimant  shall  have  employed  counsel,  the  name  of  such 
counsel  should,  with  his  address,  be  signed  to  the  memorial  and  entered 
upon  the  record,  so  that  all  necessary  notices  may  be  addressed  to 
such  counsel  or  agent  respecting  the  case."^ 

Department  of  State, 

Washington,  March  6,  1906. 

Paragraph  174  of  the  Instructions  to  Diplomatic  Officers  reads: 

"The  interposition  of  diplomatic  representatives  is  often  asked  by 
their  countrymen  to  aid  in  the  collection  of  claims  against  the  govern- 
ment to  which  they  are  accredited.  If  the  claim  is  founded  in  contract, 
they  must  not  interfere  without  specific  instructions  to  do  so.  If  it  is 
founded  in  tort,  they  will,  as  a  general  rule,  in  like  manner,  seek  previous 
instructions  before  interfering,  unless  the  person  of  the  claimant  be 
assailed  or  there  be  pressing  necessity  for  action  in  his  behalf  before  they 
can  communicate  with  the  Department  of  State;  in  which  event  they 
will  communicate  in  full  the  reasons  for  their  action."  ^ 

§  304.  Interpretation  of  the  Circular  of  1906. 

A  few  comments  upon  the  scope  and  interpretation  of  the  circular 
of  1906  may  be  appropriate.  At  the  outset,  it  may  be  remarked  that 
the  circular  is  most  liberally  construed,  and  an  approximate  compli- 
ance with  its  terms,  to  the  extent  of  making  out  a  prima  facie  case 
on  the  merits  and  of  proving  citizenship  and  title  to  protection  on  the 

'  All  papers  filed  by  claimants  in  connection  with  the  presentation  of  their  claims 
are  placed  in  the  Department's  files  and  thus  become  part  of  the  government  records, 
which  may  not  thereafter  be  taken  from  the  files  for  return  to  the  claimants  or  for 
other  purfioses. 

*  Instructions  to  the  diplomatic  officers  of  the  United  States,  1897,  §  174,  p.  68. 


INTERPRETATION   OF   THE    CIRCULAR   OF    1906  657 

part  of  the  claimant  will  usually  suffice  to  obtain  the  Department's 
assistance.  The  Department  reserves  and  frequently  exercises  the 
right  of  calling  for  additional  evidence  upon  matters  which  it  deems 
insufficiently  proved.  Briefs  on  the  law  may  also  be  required,  and  in 
this  connection  it  may  be  said  that  while  the  claimant  is  merely  re- 
quired to  state  the  facts  in  his  case,  with  the  evidence  in  support, 
it  is  well  on  doubtful  matters  to  accompany  the  memorial  with  a  brief 
in  support  of  the  legal  merits  of  the  claim  in  international  law.  Such 
a  brief  is  often  of  much  assistance  to  the  law  officers  of  the  Department 
of  State  in  determining  whether  the  government's  protection  may 
be  properly  extended  to  the  claimant. 

The  fact  that  a  claim  is  founded  in  contract  need  not  deter  a  claim- 
ant in  good  faith  from  presenting  his  memorial  to  the  Department, 
for  while  under  general  principles  a  pure  contract  claim  is  not  formally 
prosecuted,  it  has  been  shown  ^  within  what  narrow  limits  the  rule 
operates.  Moreover  the  use  of  good  offices  in  support  of  a  meritorious 
contract  claim  is  usually  extended,  and  is  often  as  efficacious  in  secur- 
ing the  desired  relief  as  the  formal  diplomatic  pressure  of  a  pecuniary 
claim. 

The  need  for  a  memorial  in  triplicate  arises  out  of  the  usual  neces- 
sity of  forwarding  one  copy  of  the  memorial  to  the  diplomatic  or  con- 
sular representative  of  the  United  States  at  the  place  where  the  alleged 
claim  arose,  for  his  investigation  and  report.  This  report  is  often 
required  by  the  Department  in  order  to  verify  as  far  as  possible  the 
truth  of  the  ex  parte  statements  of  the  claimant,  and  to  assist  it  in 
arriving  at  a  just  conclusion  as  to  the  propriety  of  extending  diplomatic 
assistance  to  the  claimant.  Many  apparently  good  prima  facie  cases 
are  thus  upon  investigation  abroad  found  to  be  quite  unworthy  of 
support.  It  may  be  added  that  in  first  instance  a  formal  memorial 
may  not  be  necessary  to  bring  the  claim  to  the  attention  of  the  Depart- 
ment, but  a  mere  letter  of  complaint,  stating  the  case,  with  the  evi- 
dence in  support,  will  ordinarily  suffice  to  enable  the  Department 
to  direct  its  representative  abroad  to  investigate  and  report.  Upon 
receipt  of  a  favorable  report,  the  Department  may  request  the  claimant 
to  file  a  formal  memorial. 

^  Supra,  §  114. 


658  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

Rule  3  of  the  circular  is  designed  to  establish  the  citizenship  of 
the  real  claimant  at  the  origin  of  the  claim,  or  the  fact  whether  he 
has  in  any  manner  expatriated  himself  or  forfeited  protection  by  pro- 
longed residence  abroad.^  Rules  4  and  5  are  intended  to  establish 
the  beneficial  ownership  of  claims,  and  all  matters  of  transferred  in- 
terest and  assignment.^  These  rules  are  also  designed  to  establish 
compliance  with  the  requirement  that  a  claim  must  be  national  in 
origin  as  well  as  at  the  time  of  presentation  and  must  have  been  con- 
tinuously national  in  ownership,  a  rule  which  will  be  more  fully  con- 
sidered presently. 

It  will  be  recalled  that  corporations  invoking  the  assistance  of  the 
Department  in  support  of  a  claim  are  required  to  file  a  properly  cer- 
tified copy  of  the  charter  or  articles  of  incorporation,  together  with 
a  duly  executed  instrument  setting  forth  the  ownership  of  the  stock 
and  bonds,  including  such  a  statement  of  the  nationality  of  the  holders 
as  will  show  in  whom  the  greater  part  of  the  real  beneficial  interest 
lies.' 

With  reference  to  Rule  15  it  may  be  said  that  attorneys  not  of  rec- 
ord must  file  a  power  of  attorney  from  a  directly  interested  claimant, 
before  information  concerning  a  claim  will  be  given  them.  A  change 
of  counsel  likewise  must  be  accompanied  by  power  of  attorney. 

Further  conditions  imposed  by  the  Department,  such  as  the  exhaus- 
tion of  local  remedies,  all  absence  of  censurable  conduct  by  the  claim- 
ant, and  other  matters  dependent  upon  the  claimant's  actions,  will 
be  discussed  at  more  appropriate  sections  of  this  Part  of  the  present 
work. 

§  305.  Practice  of  International  Tribunals. 

The  conditions  for  the  presentation  of  claims  prescribed  by  the 
circular  of  March  5,  1906,  are  to  a  large  extent  derived,  as  the  cir- 
cular states,  from  "those  which  have  been  adopted  by  commissions 
organized  under  conventions  between  the  United  States  and  foreign 
governments."     The  formal  conditions  necessary  to  admit  a  claim 

>  Infra,  §  326. 

2  Sujrra,  §  290  e<  aeg. 

"  Sujrra,  §  279. 


PRACTICE    OF    INTERNATIONAL   TRIBUNALS  659 

to  the  jurisdiction  of  an  international  commission  are  found  in  two 
sources,  the  treaty  or  protocol  establishing  the  tribunal  and  the  rules 
for  the  submission  of  claims  adopted  by  the  commission.  Claimants 
failing  to  comply  with  these  jurisdictional  conditions  are  barred.  For 
example,  the  Lasarte  claim  before  the  United  States-Peruvian  com- 
mission of  1863  was  disallowed  because  the  claimant  had  failed,  as 
the  treaty  required,  to  file  a  statement  of  his  claim  in  the  ministry 
of  foreign  affairs  of  his  country,  asking  the  diplomatic  interposition 
of  his  government.^  The  commission's  requirements  as  to  proof  of 
citizenship,  which  are  usually  jurisdictional,  are  occasionally  found, 
not  only  in  the  treaty  or  rules,  but  also  in  the  decisions  ("jurisprudence  ") 
of  the  commission.^ 

Domestic  commissions  established  by  Act  of  Congress  are  governed 
in  their  jurisdiction  by  the  statute  creating  the  commission  and  by 
the  rules  adopted.  For  example,  the  Act  establishing  the  Alabama 
Claims  court  provided  that  no  claim  should  be  allowed  "arising  in 
favor  of  any  person  not  entitled  at  the  time  of  his  loss,  to  the  protec- 
tion of  the  United  States  in  the  premises."  ^  Under  §  4  of  the  Bow- 
man Act  of  March  3,  1883,^  giving  the  Court  of  Claims  jurisdiction 
over  certain  claims  for  stores  and  supplies,  loyalty  of  the  claimant 
throughout  the  war  was  a  jurisdictional  fact,  and  the  claim  was  like- 
wise barred  if  it  had  not  previously  been  presented  to  some  other 
department  of  the  government.^ 

»  Lasarte  (Peru)  v.  U.  S.,  Jan.  12,  1863,  Moore's  Arb.  2390,  2395.  See  also  Kin- 
ney (U.  S.)  V.  Peru,  ibid.  1626.  The  same  result  was  reached  in  the  case  of  certain 
claims  before  the  U.  S.-Mexican  commission  of  1839,  Moore's  Arb.  1244.  The 
Department's  circular  of  March  5,  1906  for  this  reason  advises  that  "interposition" 
of  the  United  States  "should  be  requested  in  express  terms." 

2  Supra,  §  212. 

3  Act  of  June  23,  1874,  §  12,  18  Stat.  L.  248. 
*  22  Stat.  L.  485. 

5  Fors  V.  U.  S.,  19  Ct.  CI.  519,  Senate  Rep.  .544,  55th  Cong.,  2nd  sess.,  6-7.  See 
also  Fletcher  v.  U.  S.,  32  Ct.  CI.  36;  Nance  v.  U.  S.,  23  Ct.  CI.  463,  and  McStea  v. 
U.  S.,  Moore's  Arb.  2381.  In  cases  transmitted  under  the  Tucker  Act  loyalty  is 
not  a  jurisdictional  fact.  Chieve  v.  U.  S.,  42  Ct.  CI.  21.  For  the  acts  creating  a  few- 
other  domestic  commissions  or  their  rules  see:  Rules  and  regulations  of  Commissioners 
of  Claims  imder  Act  of  March  3,  1871,  H.  Misc.  Doc.  12,  42nd  Cong.,  3d  sess.  41-49. 
Decree  (May  17,  1911)  creating  the  Nicaraguan  mixed  claims  commission,  and 
rules  of  procedure,  Managua,  1912.    Acts  creating  Hawaiian  court  of  claims,  87  St. 


660  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

The  rules  of  international  and  domestic  commissions  usually  pro- 
vide for  the  method  of  presenting  claims,  the  documents  which  must 
be  submitted,  the  formal  contents  of  petitions  or  memorials,  the  nec- 
essary jurisdictional  data  concerning  the  claimant  and  the  claim, 
the  form  of  the  papers,  the  method  and  time  of  filing,  and  other  matters 
of  pleading  and  procedure.  ^ 

CLAIM    MUST    BE   NATIONAL    IN   ORIGIN 

§  306.  Impossibility  of  Nationalizing  Claim  by  Naturalization  or  As- 
signment. 

Few  principles  of  international  law  are  more  firmly  settled  than 
the  rule  that  a  claim,  in  order  to  justify  diplomatic  support,  must 
whe7i  it  accrued  have  belonged  to  a  citizen.  This  principle  that  a  claim 
must  be  national  in  origin  arises  out  of  the  reciprocal  relation  between 
the  government  and  its  citizens,  the  one  owing  protection  and  the 
other  allegiance.  If  the  claim  did  not  originally  accrue  in  favor  of 
one  owing  allegiance,  protection  cannot  be  invoked  or  properly  ex- 
tended. To  support  a  claim,  originally  foreign,  because  it  happened 
to  come  into  the  hands  of  a  citizen  would  make  of  the  government 
a  claim  agent.  The  rule  that  "citizenship  at  the  time  the  claim  arose 
must  be  shown"  is  invoked  by  the  Department  of  State  to  reject  two 
classes  of  claims  in  which  efforts  have  been  made  to  nationalize  a 
diplomatic  claim  originally  held  by  a  foreigner. 

1.  The  first  class  covers  cases  where  the  original  claimant,  a  for- 
eigner when  the  claim  accrued,  becomes  subsequently  a  naturalized 
citizen,  and  seeks  the  diplomatic  interposition  of  the  United  States 
in  support  of  his  claim.  This  class  of  claimant  is  uniformly  barred 
by  the  rule  that  naturaUzation  is  not  retroactive  but  prospective 
only,  and  that  the  state  of  adoption  cannot  extend  diplomatic  redress 
to  an  individual  in  matters  which  arose  before  his  admission  to  citi- 

Pap.  1230.  Claims  against  Cuba  growing  out  of  insurrection,  Decree  158,  Nov.  22, 
1906,  For.  Rel.,  1907,  I,  298-301.  Claims  against  Colombia,  Decree  of  Feb.  17,  1886, 
77  St.  Pap.  805.  At  times  the  conditions  imposed  by  certain  Latin-American  re- 
publics upon  claimants  against  themselves  have  been  considered  by  foreign  govern- 
ments as  violations  of  international  law.    Infra,  p.  849. 

'  See,  e.  g.,  Rules  of  the  British-American  commission  under  art.  XII  of  the  treaty 
of  May  8,  1871,  63  St.  Pap.  1057,  Hale's  Rep.  177.  Organic  act  of  March  2,  1901, 
31  Stat.  L.  877,  creating  the  Spanish  Treaty  Claims  Commission,  and  preceding  note 


CLAIM   MUST  BE   NATIONAL   IN   ORIGIN  661 

zenship.*  While  naturalization  transfers  allegiance,  it  does  not  trans- 
fer existing  state  obligations.  "Subsequent  naturalization  does  not 
alter  the  international  status  of  a  claim  which  accrued  before  naturaliza- 
tion." ^  It  has  already  been  observed  that  a  declaration  of  intention 
is  not  sufficient  to  warrant  diplomatic  interposition.' 

The  Department  of  State  has  in  a  number  of  instances  considered 
the  rule  as  not  applicable  to  cases  in  which  the  injury  is  a  continuing 
one  and  constantly  accruing,  or  where  injuries  inflicted  prior  to  and 
subsequent  to  naturalization  may  be  separated.  In  such  cases,  which, 
however,  are  exceedingly  rare,  the  Department  has  interposed  to  ob- 
tain redress  for  injuries  sustained  subsequent  to  naturahzation.'* 

2.  The  second  class  covers  cases  where  the  original  claimant,  a 
foreigner,  assigns  his  claim  to  an  American  citizen  or  the  claim,  by 
operation  of  law,  passes  into  the  hands  of  an  American  citizen  who 
seeks  diplomatic  protection.  This  class  of  claim  is  barred  by  the  rule 
that  the  right  of  interposition  is  not  assignable,  and  that  the  Depart- 
ment of  State  will  not  espouse  a  "nationalized"  claim  which  came 
into  American  hands  after  it  had  accrued. °  Yet  where  a  legal  assign- 
ment of  an  interest,  e.  g.,  a  concession  contract,  is  made  to  an  American 
citizen  prior  to  the  origin  of  a  claim,  the  claim  is  considered  as  having 
accrued  to  an  American  citizen  and  is  not  barred  by  the  rule  above 
mentioned.® 

1  Moore's  Dig.  VI,  §  981;  supra,  p.  540. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Goldiug,  Apr.  30,  1886,  Moore's  Dig.  VI,  637. 
'  Supra,  p.  566. 

^Mora's  claim  against  Spain,  Moore's  Dig.  VI,  637  and  1017-1021;  For.  Rel., 
1894,  App.  I,  364-450;  For.  Rcl.,  1895,  1160-1177.  Acosta's  claim,  Mr.  Bayard, 
Sec'y  of  State,  to  Mr.  Ciirr>',  Apr.  9,  1886,  Moore's  Dig.  VI,  638.  See  also  Santangelo 
(U.  S.)  V.  Mexico,  Apr.  11,  1839,  Moore's  Arb.  2550  (a  claim  arising  subsequent  to 
naturalization  was  allowed).  But  see  Morris'  case,  Moore's  Dig.  VI,  633,  and  de- 
cisions of  U.  S.-Spanish  Commission  of  1871,  infra,  p.  663. 

5  Moore's  Dig.  VI,  §  982;  For.  Rel.,  1894,  484-485.  It  is  doubtful  whether  aU 
foreign  governments  adhere  so  closely  to  this  principle.  Germany  appears  to  have 
pressed  against  Haiti  the  claim  of  Funk  and  Ebersman,  a  debt  originally  due  to  a 
Haitian  but  assigned  to  this  German  firm.  Report  from  American  Legation  at 
Port-au-Prince,  No.  1119,  Aug.  26,  1912.  It  is  probable  that  such  a  settlement  of 
a  foreign  claim  would  give  the  U.  S.  a  good  ground,  based  on  discrimination,  for 
urging  the  settlement  of  a  similar  American  claim. 

«  Mr.  Hay,  Sec'y  of  State,  to  Mr.  PoweU,  Dec.  23,  1898,  Moore's  Dig.  VI,  639. 


(302  THE    DIPLOMATIC   PROTECTION    OF   CITIZENS   ABKOAD 

§  307.  Decisions  of  International  Tribunals  of  Arbitration. 

These  principles  have  frequently  been  applied  by  international 
claims  commissions,  where  indeed  it  is  believed  they  had  their  origin. 
The  jurisdictional  clause  of  treaties  under  which  these  commissions 
act  usually  provides  for  the  adjudication  of  claims  of  "citizens  of 
the  United  States."  This  provision  has  been  held  to  require  citizen- 
ship at  the  time  of  the  origin  of  the  claim,  as  well  as  at  the  time  of 
presentation. 

Under  the  first  head,  claims  of  naturalized  citizens  have  been  dis- 
allowed when  it  appeared  that  their  naturalization  occurred  subse- 
quent to  the  time  of  the  original  injury,  under  the  general  rule  that 
naturalization  has  no  retroactive  effect  to  accord  protection  for  in- 
juries received  prior  to  naturalization.^ 

Claims  have  likewise  been  disallowed  when  their  citizenship  at 
origin  was  not  established,  even  though  they  were  presented  by  citi- 
zens of  the  claimant  country.^ 

Nor  will  the  fact  that  a  declaration  of  intention  had  been  filed  at 
the  time  of  the  injury  be  considered  the  equivalent  of  citizenship  at 
origin,   even  when  naturalization  followed.^     Reference  has  already 

>  Meyer  (U.  S.)  v.  Mexico,  March  3,  1849,  Opiii.  756,  not  in  Moore;  Zander  (U.  S.) 
V.  Mexico,  ibid.,  Moore's  Arb.  3433  {dictum);  Medina  (U.  S.)  v.  Costa  Rica,  July  2, 
1860,  ibid.  2483;  Abbiatti  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  ibid.  2347;  Southern 
Claims  Commission,  H.  Misc.  Doc.  16,  42nd  Cong.,  2nd  sess.;  and  see  argument  in 
Perch^  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2401, 2408;  Pinkerton  land  claim, 
20  Op.  Atty.  Gen.  (Miller),  118,  123. 

2Parrott  and  Wilson  (U.  S.)  v.  Mexico,  Apr.  11,  1839,  Moore's  Arb.  2381;  same 
claim,  Act  of  March  3,  1849,  ibid.  2384;  Santangelo  (U.  S.)  v.  Mexico,  Apr.  11,  1839, 
ibid.  2549;  Morrison  (U.  S.)  v.  Mexico,  ibid.  2325;  Dimond  (U.  S.)  v.  Mexico,  ibid. 
2387;  Slocum  (U.  S.)  v.  Mexico,  Apr.  11,  1839  and  Mar.  3,  1849,  ibid.  2382,  2385; 
Dwyer  and  Grammant  (U.  S.)  v.  Mexico,  ibid.  2322;  Sandoval  (U.  S.)  v.  Mexico, 
ibid.  2323;  Lasarte  (Peru)  v.  U.  S.,  Jan.  12,  1863,  Moore's  Arb.  2390,  2394;  Hargous 
(U.  S.)  V.  Mexico,  July  4,  1868,  ibid.  2327;  Fleury  (U.  S.)  v.  Mexico,  ibid.  2156;  Dusen- 
berg  (U.  S.)  v.  Mexico,  ibid.  2157.  See  decisions  cited  ibid.  1353;  Zayas  (U.  S.)  v. 
Spain,  Feb.  12,  1871,  ibid.  2341;  Prieto,  ibid.  2339;  Carrillo,  ibid.  2237;  Selway  (U.  S.) 
V.  Chile,  Aug.  7,  1892,  ibid.  2557;  Corvaia  (Italy)  v.  VenezAiela,  Feb.  13,  1903,  Ralston, 
809.  See  also  Act  of  June  26,  1834,  6  Stat.  L.  569,  providing  for  East  Florida  claims 
of  Spanish  subjects.  Peruvian  indemnity,  March  17,  1841,  Atty.  Gen.  opinion,  cited 
Moore's  Arb.  4.593.  Virginias  indemnity,  case  of  Gen.  Ryan,  H.  Ex.  Doc.  14,  45th 
Cong.,  1st  sess. 

»  Morrison  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  2325;  Ehlers  (U.  S.)  v. 
Mexico,  ibid.  2551;  Ryder  (U.  S.)  v.  China,  Nov.  8,  1858,  ibid.  2332;  Milatovitch 


DECISIONS   OF   INTERNATIONAL  TRIBUNALS   OF   ABKITRATION       663 

been  made  to  the  peculiar  rule  of  some  of  the  earlier  decisions  of  the 
United  States-Mexican  commission  of  1868  which  held  that  proof 
of  domicil  in  the  United  States  plus  a  declaration  of  intention  at  the 
time  of  the  origin  of  the  claim  constituted  a  sufficient  title  to  admit 
the  claimant  to  standing  before  the  commission  as  a  "citizen."  ^  This 
conclusion  was  disavowed  by  Umpire  Thornton  in  later  decisions 
of  that  commission,  and  has  ever  since  been  regarded  as  erroneous. 

A  special  provision  in  the  United  States-Spanish  agreement  of  Feb- 
ruary 12,  1871  establishing  a  claims  commission,  to  the  effect  that 
Spain  could  "traverse  the  allegation  of  American  citizenship  and  there- 
upon competent  and  sufficient  proof  thereof  will  be  required,"  was 
due  principally  to  the  large  number  of  Cubans  who  had  become  nat- 
uralized in  the  United  States,  and  the  certainty  that  many  of  them 
had  procured  naturalization  solely  for  the  purpose  of  invoking  Amer- 
ican protection.  The  United  States  appears  to  have  presented  claims 
of  this  character,  leaving  it  to  Spain  to  dispute  the  good  faith  of  the 
naturaUzation.^ 

Ingenious  arguments  were  made  before  this  commission  in  certain 
cases  where  property  was  seized  or  embargoed  bj""  Spain  prior  to  the 
claimant's  naturaUzation.  Subsequent  to  the  naturalization,  an  order 
of  restoration  or  an  order  to  pay  for  the  property  w^as  left  unexecuted 
or  a  decree  of  confiscation  was  issued.  Claimants  sought  to  circumvent 
the  rule  that  citizenship  is  necessary  when  the  claim  arises,  by  basing 
their  claims  not  upon  the  original  embargo  or  seizure,  but  upon  the 
failure  to  restore  the  property  or  pay  for  it  in  accordance  with  the 
orders,  or  upon  the  decree  of  confiscation.  In  all  these  cases,  the  de- 
cisions were  to  the  effect  that  the  injury  dates  from  the  original  em- 
bargo or  seizure,  and  that  the  retention  of  the  property  after  the  owner's 
naturafization  is  no  new  injury.  The  claims  were,  therefore,  dismissed 
for  lack  of  citizenship  at  origin.^ 

(U.  S.)  V.  Mexico,  July  4,  1868,  No.  395,  MS.  Op.  IV,  350;  Hutchinson  v.  U.  S.,  Act  of 
June  23,  1874  (Geneva  award),  ibid.  2359;  De  Acosta  (U.  S.)  v.  Spain,  Feb.  12,  1871, 
ibid.  2462;  Prieto,  ibid.  2339;  Izquierdo,  ibid.  2340;  Wilson  (U.  S.)  v.  Chile,  Aug.  7, 
1893,  Moore's  Arb.  2553,  2557. 

1  Supra,  §  252. 

2  Supra,  p.  523. 

« CarriUo  (U.  S.)  v.  Spaia,  Feb.  12,  1871,  Moore's  Arb.  2337;  Prieto,  ibid.  2339; 


864  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

The  rule  that  citizenship  at  origin  of  the  claim  is  necessary  is  oc- 
casionally modified  or  set  aside  by  the  jurisdictional  statutes  or  treaties 
under  which  commissions  act.  For  example,  the  Act  of  June  23,  1874, 
establishing  the  court  for  the  distribution  of  the  Geneva  award  pro- 
vided that  the  claimant  must  be  "entitled  at  the  time  of  his  loss,  to 
the  protection  of  the  United  States  in  the  premises."  Under  this 
provision,  Rajnier,  J.,  delivering  the  opinion  of  the  court,  held  that 
the  Act  rendered  admissible  the  claims  of  all  persons,  native  or  natu- 
ralized, and  even  unnaturalized,  who  were  at  the  time  of  their  loss 
entitled  to  the  protection  of  the  United  States  flag  on  the  high  seas, 
except  British  subjects,  who  were  not  entitled  to  American  protection 
or  intervention  as  against  their  own  government.^ 

In  view  of  the  particular  wording  of  the  protocol  of  February  17, 
1903,  giving  the  United  States- Venezuelan  commission  jurisdiction 
of  claims  "owned  by  citizens  of  the  United  States,"  it  was  held  by 
Umpire  Barge  that  the  two  governments  had  expressly  contracted 
themselves  out  of  the  ordinary  rule  which  requires  that  claims  pre- 
sented by  a  nation  on  behalf  of  its  citizens  should  be  national  in  their 
origin,  and  he  took  jurisdiction  of  a  claim  originally  belonging  to  a 
foreign  company  but  owned  at  the  time  of  presentation  by  an  American 
corporation.^ 

CITIZENSHIP   AT   TIME    OF   PRESENTATION 

§  308.  Decisions  of  International  Tribunals  of  Arbitration. 

A  practically  uniform  rule  provides  that  to  secure  diplomatic  sup- 
port for  a  claim,  it  must  be  national  at  the  time  of  its  presentation, 
i.  e.,  owned,  legally  and  beneficially,  bj'^  a  citizen.  Although  national 
in  origin,  therefore,  it  may  be  denationalized  by  its  transfer  to  an 
alien,  voluntarily  or  by  operation  of  law,  or  by  its  original  owner  losing 
his  citizenship. 

Izquierdo,  ibid.  2340;  Zayas  de  Bazan,  ibid.  2341;  Simoni,  ibid.  2347;  De  Acosta, 
ibid.  2347  and  other  cases  cited  on  p.  2347. 

»  Worth  and  others  v.  U.  S.,  No.  91,  Davis'  Rep.,  Washington,  1877,  pp.  35-42, 
Moore's  Arb.  2350. 

2  Orinoco  Steamship  Co.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  72,  84. 
See  also  Anderson  (U.  S.)  v.  Venezuela,  ibid.  167.  "Owned"  was  construed  to  mean 
"owned  at  the  time  of  the  signing  of  the  protocol." 


CITIZENSHIP   AT   TIME   OF    PRESENTATION  665 

Cases  of  this  character  have  on  numerous  occasions  been  adju- 
dicated by  international  tribunals.  Under  the  customary  form  of 
jurisdictional  article  conferring  upon  the  commission  jurisdiction 
of  claims  of  "citizens,"  it  has  usually  been  held  that  the  claimant 
must  aver  and  prove  his  citizenship  at  the  time  of  the  signature  of 
the  protocol  or  of  the  presentation  of  his  claim.  Thus,  notwithstand- 
ing citizenship  at  the  origin  of  the  claim,  if  the  claimant  subsequently 
lost  his  citizenship,*  or  if  the  claim,  by  assignment  ^  or  operation  of 
law  ^  came  into  the  hands  of  an  alien,  it  could  no  longer  be  presented 
as  the  claim  of  a  "citizen,"  and  such  claims  have  been  disallowed 
on  jurisdictional  grounds. 

It  has  been  held  that  a  treaty  providing  for  the  adjudication  of 
claims  of  "citizens  of  the  United  States,"  meant  citizens  at  the  date 
of  the  treaty.^  The  Supreme  Court  of  the  United  States  believed 
such  a  provision  to  require  citizenship  both  at  the  time  of  presenta- 
tion and  of  judgment.^  The  clause  "owned  by  citizens  of  the  United 
States"  has  been  construed  to  mean  owned  at  the  time  of  the  signa- 
ture of  the  protocol,  a  claim  subsequently  coming  into  the  hands  of 
a  citizen  being  disallowed.^ 

The  death  of  a  claimant  after  the  presentation  of  his  claim,  it  having 
satisfied  the  requirements  of  citizenship  at  origin  and  at  the  time  of 

1  Gribble  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale's  Rep.  14;  Perchg  (France)  v. 
U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2401-2418,  BoutweU'a  Rep.  4-54.  Mr.  Boutwell 
states  (p.  54)  that  there  were  33  cases  of  persons  claiming  compensation,  who  were 
citizens  of  France  when  the  losses  occurred,  but  who  had  in  the  intervening  period 
been  naturalized  as  citizens  of  the  U.  S.    These  claims  were  all  rejected. 

2  Jarrero  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  2324;  Benson  (U.  S.)  v. 
Peru,  Jan.  12,  1863,  ibid.  2390;  Mora  (U.  S.)  v.  Spain,  Feb.  12,  1871,  ibid.  2397; 
Gamy  (France)  v.  U.  S.,  Jan.  15,  1880,  ibid.  2398;  supra,  §  291. 

'  Maxan's  heu-s  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2485;  Lizardi  (U.  S.) 
V.  Mexico,  ibid.  2483;  Levy  (France)  v.  U.  S.,  Jan.  15,  1880,  ibid.  2514,  2518;  Mas- 
siani  (France)  v.  Venezuela,  Feb.  19,  1902,  Sen.  Doc.  533,  59th  Cong.,  1st  sees.,  211; 
Brignone  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  720;  Miliani  (Italy)  v. 
Venezuela,  ibid.  759;  Giacopini  (Italy)  v.  Venezuela,  ibid,  767.  See  also  supra, 
§  283  et  seq. 

*  Sandoval  and  others  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's  Arb.  2323;  Beales 
(U.  S.)  V.  Mexico,  ibid.  2671  (nor  was  claimant  a  citizen  at  origin  of  claim). 

s  Burthe  v.  Davis,  133  U.  S.  514  (French-U.  S.  commission  of  Jan.  15,  1880). 

« Anderson  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston.  167,  Morris'  Rep.  357- 
359. 


366  THE   DIPLOMATIC   PROTECTION   OF    CITIZENS   ABROAD 

presentation,  has  been  held  not  to  bar  the  claim  but  to  vest  his  interest 
in  his  legal  representatives.^ 

§  309.  Claim  Must  be  Continuously  National  in  Ownership. 

The  conclusion  is  inevitable  that  under  ordinary  circumstances 
a  claim  to  be  considered  a  national  claim,  must  be  national  both  in 
origin  and  at  the  time  of  presentation.^  Moreover,  according  to  the 
weight  of  authority,  it  must  be  continuously  national  in  ownership, 
so  that  if  at  any  time  after  its  origin  it  has  passed  out  of  national  hands 
or  lost  its  national  character,  its  nationality  is  not  merely  suspended 
but  is  completely  destroyed,  so  that  its  reassignment  to  a  citizen  can- 
not revive  its  original  nationality.^ 

It  has  already  been  observed  ^  that  a  commission  usually  looks 
to  the  citizenship  of  the  real  claimant  and  equitable  owner  rather 
than  of  the  nominal  claimant  and  ostensible  owner.  ^ 

§  310.  Theory  of  Indirect  Injury  to  the  State.    Criticism. 

An  injury  to  a  citizen  being  an  indirect  injury  to  his  state,  it  is  quite 
apparent  why  the  claim  in  its  origin  must  accrue  to  a  citizen,  in  order 
to  receive  diplomatic  cognizance.  It  is  not  so  clear  in  theory  why  a 
claim,  which,  having  originally  accrued  in  favor  of  a  citizen,  has  passed 

1  Chopin  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb.  2506;  Stevenson  (Gt. 
Brit.)  V.  Venezuela,  Feb.  13,  1903,  Ralston,  438,  455. 

2  Moore's  Arb.  1353;  Wiltz  (France)  v.  U.  S.,  Jan.  15,  1880,  ibid.  2254;  Young 
(U.  S.)  V.  Mexico,  March  3,  1849,  ibid.  2753  (dictum);  Stevenson  (Gt.  Brit.)  v.  Vene- 
zuela, Feb.  13,  1903,  Ralston,  438,  455;  supra,  §  306  et  seq. 

'  Kane's  notes  .  .  .  under  the  convention  with  France,  July  4,  1831,  Phila.  1836, 
pp.  13,  21,  Moore's  Arb.  4471;  Slocum  (U.  S.)  v.  Mexico,  March  3,  1849,  Moore's 
Arb.  2385  and  Dimond  (U.  S.)  v.  Mexico,  ibid.  2386  (dictum);  Loehr  (U.  S.)  v.  Vene- 
zuela, Dec.  5,  1885,  Opinions  of  the  Commission,  87  (claim  American  in  origin,  sold 
to  foreigner,  and  reassigned  to  American  was  barred);  Treaty  between  Spain  and 
Peru,  Jan.  27,  1865,  art.  5,  Martens'  Nouv.  Rec.  Gen.  XX,  607.  See  contra  Petit 
(France)  v.  U.  S.,  Jan.  15,  1880,  No.  255,  Boutwell's  Rep.  84  (claimant  a  French 
citizen  when  claim  arose,  subsequently  became  naturalized  as  an  American  citizen 
and  later  became  redintegrated  as  a  French  citizen.  The  claim  was  allowed).  See 
also  dictum  in  disallowed  claim  of  Nicrosi  (France)  v.  U.  S.,  ibid.,  No.  415,  Boutwell's 
Rep.  87. 

*  Su/rra,  §  283  et  seq. 

'  The  exceptions  to  this  general  rule  which  in  some  cases  enabled  persons  not 
citizens  to  recover  awards,  have  been  noted,  supra,  §  295  et  seq. 


CONSULAR   REGISTRATION   OF   CITIZENS  667 

into  the  hands  of  an  alien,  should  necessarily  forfeit  the  protection 
of  its  original  government,  especially  where  it  passes  not  by  voluntary 
assignment  but  by  operation  of  law.  If  the  state  has  been  injured 
by  the  original  wrong  done  to  its  citizen,  the  mere  transfer  of  the  claim 
hardly  seems  to  purge  the  national  injury  to  the  state.  A  few  deci- 
sions, in  fact,  have  accorded  an  administrator  or  executor  the  right 
to  receive  an  award  on  behalf  of  the  estate  of  a  deceased  citizen,  not- 
withstanding the  alienage  of  the  heirs  or  direct  beneficiaries.^  The 
weight  of  authority,  however,  is  opposed  to  this  finding.  The  general 
rule  can  only  be  explained  on  the  ground  that  diplomatic  protection 
is  merely  a  supplementary  or  extraordinary  legal  remedy,  which  has 
no  absolute  sphere  of  operation,  and  may  be  modified  in  application 
wherever  it  appears  reasonable.^ 

CONSULAR    REGISTRATION   OF   CITIZENS 

§  311.  Its  Relation  to  Protection. 

In  order  to  facilitate  diplomatic  protection,  and  the  necessary  proof 
of  citizenship  upon  which  it  depends,  many  governments  provide 
for  the  registration  in  consular  offices  of  their  citizens  residing  abroad. 
France,  Italy,  Belgium,  Spain,  Portugal,  Norway,  and,  since  1907, 
the  United  States,  are  among  the  countries  which  have  adopted  this 
system.  The  effect  of  consular  registration  is  not  the  same  in  all  coun- 
tries, but  its  general  purpose  is  to  give  the  home  government  informa- 
tion as  to  the  number  and  distribution  of  its  citizens  abroad,  to  furnish 
evidence  of  a  desire  of  the  citizen  to  retain  his  original  nationality, 
and  to  afford  an  official  record  of  his  identity  and  political  status  to 
the  consul  and  to  the  local  authorities.^    Registration  is  ia  itself  there- 

'  Supra,  §  285.  See  the  memorandum  of  the  oral  argument  of  the  U.  S.  in  support 
of  this  proposition  in  the  Studer  claim,  No.  32,  before  the  American  and  British 
Claims  Com.,  Aug.  18,  1910,  and  the  contention  of  the  British  agent  in  the  Stevenson 
case  V.  Venezuela,  Feb.  13,  1903,  Ralston,  439. 

-  Supra,  p.  352. 

'  In  the  case  of  Esteves  (Spain)  v.  Venezuela,  April  2,  1903,  Ralston,  922,  regis- 
tration in  the  Spanish  consulate  and  a  certificate  of  registration  were  accepted  as 
prima  facie  evidence  of  Spanish  nationality.  The  same  rule  was  applied  by  the 
Arbitrator  of  the  Italian-Peruvian  commission  under  the  protocol  of  Nov.  25,  1899, 
Descamps  and  Renault,  Rec.  int.  des  traites  du  xx*  siecle,  1901,  p.  701  ei  seq. 


668  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

fore  a  precautionary  measure  of  protection,  and  its  importance  in 
facilitating  the  extension  of  protection  when  a  case  arises  will  be  read- 
ily apparent.    It  is  not,  however,  a  guarantee  of  protection.* 

It  was  for  some  time  a  matter  of  doubt  among  continental  publicists 
whether  consular  registration  was  a  sine  qud  non  of  protection,  or 
whether  it  was  merely  recommended  by  the  government  in  the  citizen's 
own  interest  and  optional,  therefore,  with  the  citizen  himself.  The 
difficulty  appears  to  have  been  created  by  the  French  decree  of  No- 
vember 28,  1833,  which  provides  that  "Frenchmen  residing  abroad, 
who  wish  to  assure  themselves  of  consular  protection  in  the  district 
in  which  they  reside  .  .  .  shall  have  themselves  inscribed,  upon  proof 
of  their  nationality,  in  the  registration  book  kept  for  this  purpose 
at  each  consulate."  The  concensus  of  opinion  now  is  that  registration 
is  not  an  absolute  condition  precedent  to  protection,  for  this  should 
depend  not  upon  a  mere  administrative  formality,  but  upon  proof 
of  citizenship.  While  registration,  therefore,  is  desirable,  and  consuls 
are  urged  to  persuade  their  nationals  to  register,  it  is  not  absolutely 
necessary  to  protection.^ 

Failure  to  register  may,  however,  have  a  very  important  bearing 
on  protection  through  its  legal  effect  upon  citizenship.  Under  the 
Act  of  March  2,  1907,  registration  is  a  necessary  condition  for  the 
retention  or  resumption  of  American  citizenship,  as  the  case  may 
be,  on  the  part  of  foreign-born  women  abroad,  the  widows  or  divorced 
wives  of  American  citizens,  or  of  native  women  abroad,  the  widows 

1  Mr  Knox,  Sec'y  of  State  in  For.  Rel.,  1910,  198. 

2  Pradier-Fod^re,  P.,  Cours  de  droit  diplomatique,  2nd  ed.,  Paris,  1899, 1,  543-548, 
Pradier-Fodere,  Traite,  III,  §  1376;  De  Clercq,  A.,  and  De  Vallat,  C,  Guide  pratique 
des  consulats,  5th  ed.,  Paris,  1898,  §  330  et  seq.;  Pittard,  E.,  La  protection  des  na- 
tionaux  a  I'etranger,  Geneva,  1896,  185-187.  Failure  to  register  may,  however, 
have  important  legal  effects,  e.  g.,  only  a  registered  Frenchman  may  be  a  witness  to 
f'crtain  instruments,  or  be  the  sole  owner  of  a  ship  flying  the  French  flag.  De  Clercq 
and  De  Vallat,  §  331.  In  some  countries,  like  Spain,  the  consular  registration  of 
subjects  abroad  affected  with  a  dual  nationality,  is  necessary  to  manifest  an  election 
of  nationalitJ^  Its  effect  in  the  U.  S.  will  be  considered  presently.  Pradier-Fodere 
states  that  during  his  experience  in  South  America  certain  French  consular  officers 
made  registration  a  condition  of  protection,  of  which  practice  Pradier-Fod^r^  un- 
equivocally disapproves.  The  majority  of  the  consular  regulations  of  Latin-American 
countries  expressly  provide  that  their  representatives  abroad  shall  not  refuse  protec- 
tion to  unregistered  nationals,  op.  cit.,  547. 


PROOF    OF   CITIZENSHIP   NECESSARY.      CONSULAR   REGULATIONS      669 

or  divorced  wives  of  foreigners.^  It  operates  also,  under  certain  cir- 
cumstances, as  an  election  of  citizenship  on  the  part  of  children  born 
abroad  of  American  fathers.^ 

§  312.     Registration  in  Extraterritorial  Countries. 

Great  Britain  and  some  other  countries  make  the  registration  of 
their  subjects  compulsory  in  certain  Oriental  countries  in  which  ex- 
traterritorial rights  are  exercised.^  In  some  states,  e.  g.,  Siam,  the 
requirement  of  registration  is  expressly  mentioned  in  the  treaty,  the 
privileges  therein  granted  being  extended  only  to  registered  subjects.^ 
In  other  cases,  it  is  made  compulsory  by  Order  in  Council.  In  some 
states,  e.  g.,  China,  non-comphance  is  made  punishable  by  fine.^  Failure 
to  register  does  not  exempt  the  person  from  consular  jurisdiction, 
but  forfeits  the  right  to  protection.  The  general  custom  in  certain 
countries  in  which  extraterritorial  privileges  are  enjoyed,  of  furnishing 
the  local  authorities  with  lists  of  nationals,  foreigners  and  proteges 
under  consular  jurisdiction  renders  registration  in  some  form  almost 
a  necessity  and  it  is  probable  that  the  United  States  will  soon  follow 
the  example  of  Great  Britain  by  making  registration  in  certain  Eastern 
countries  compulsory.^ 

§  313.  Proof  of  Citizenship  Necessary.    Consular  Regulations. 

The  same  proof  of  citizenship  is  required  for  consular  registration 
as  is  required  by  the  Department  of  State  for  the  issuance  of  a  passport. 
Paragraph  172  of  the  Consular  Regulations,  as  amended  by  the  Execu- 
tive order  of  April  8,  1907,  now  governs  the  matter  of  registration 
of  American  citizens.  It  was  notified  to  the  representatives  abroad  of 
the  United  States  by  a  circular  of  April  19,  1907.    The  paragraph  reads: 

'  These  provisions,  §§  3  and  4  of  the  Act  of  1907,  have  been  fully  considered  in 
the  discussion  of  the  subject  of  married  women,  supra,  §§  265,  267. 

2  Section  6  of  the  Act  of  March  2,  1907,  supra,  §  271. 

'  Hall,  W.  E.,  Foreign  powers  and  jurisdiction,  §  62;  Piggott,  F.,  Exterritoriality, 
163;  Hinckley,  Consular  jurisdiction,  83.  See  British  instructions  to  consular  officers 
regulating  the  registration  of  British  subjects  in  foreign  countries,  October,  1907, 
100  St.  Pap.  24-27. 

*  Piggott,  Extraterritoriality,  163.  See  also  treaty  between  Denmark  and  Siam, 
March  24,  190.5,  101  St.  Pap.  289. 

5  British  China  Order,  art.  162,  Piggott,  164. 

« See  Mr.  Denby's  despatch  to  Sec'y  Ohiey,  Nov.  27,  1896,  For.  Rel.,  1896,  90. 


670  THE   DIPLOMATIC   PROTECTION   OF  CITIZENS  ABROAD 

"  172.  Registration  of  American  Citizens. — Principal  Consular  Officers 
should  keep  at  their  offices  a  Register  of  all  American  citizens  residing 
in  their  several  Districts,  and  will  therefore  make  it  known  that  such  a 
Register  is  kept  and  invite  all  resident  Americans  to  cause  their  names 
to  be  entered  therein.  The  same  general  principles  govern  applications 
for  registry  which  govern  applications  for  passports  (Paragraph  151). 

"The  Register  should  show  the  date  of  registration,  the  full  name  of 
the  person  registered,  the  date  and  place  of  his  birth,  the  place  of  his 
last  domicil  in  the  United  States,  the  date  of  his  arrival  in  the  foreign 
country  where  he  is  residing  and  his  place  of  residence  therein,  the  reasons 
for  his  foreign  residence,  whether  or  not  he  is  married  and  if  married  the 
name  of  his  wife,  her  place  of  birth  and  residence,  and  if  he  has  children 
the  name,  date  and  place  of  birth  and  residence  of  each.  The  nature  of 
the  proof  accepted  to  establish  his  citizenship  should  also  appear,  and 
his  signature  should  be  inscribed  in  the  Register. 

"Consuls  may  issue  certificates  of  the  registration  prescribed  above 
for  use  with  the  authorities  of  the  place  where  the  person  registered  is 
residing.  Each  certificate  shall  set  forth  the  facts  contained  in  the 
Register  and  shall  be  good  for  use  for  one  year  only  and  shall  be  in 
form  prescribed  by  the  Secretary  of  State.  (Form  No. — ).  When  a 
certificate  expires  a  new  one  may  be  issued,  the  old  one  being  destroyed, 
if  it  is  clearly  shown  that  the  residence  abroad  has  not  assumed  a  per- 
manent character.  Persons  who  hold  passports  which  have  not  expired 
shall  not  be  furnished  with  certificates  of  registration,  and  it  is  strictly 
forbidden  to  furnish  them  to  be  used  for  travelling  in  the  place  of  pass- 
ports. Returns  of  all  registrations  made  and  of  all  certificates  of  regis- 
tration issued  shall  be  made  to  the  Embassy  or  Legation  in  the  country 
in  which  the  Consulate  is  situated  and  to  the  Secretary  of  State  at  in- 
tervals and  under  regulations  to  be  prescribed  by  him.  No  fee  will 
be  charged  for  registration  nor  for  any  service  connected  therewith, 
nor  for  certificates  of  registration. 

"This  Paragraph  shall  go  into  effect  July  1,  1907." 

After  setting  forth  the  form  in  which  the  certificate  of  registration 
shall  be  issued,  the  circular  ends: 

"Immediately  upon  the  registration  of  an  American  citizen  the  fact 
of  such  registration  should  be  certified  to  the  embassy  or  legation  in 
the  country  in  which  the  consulate  is  situated,  and  a  duplicate  of  the 
registration  should  be  forthwith  sent  to  this  Department,  together  with 
a  statement  whether  a  certificate  of  registration  has  been  issued. 

"When  a  certificate  of  registration  shall  have  expired  and  a  new  one 
has  been  issued  notice  of  this  fact  should  be  sent  immediately  to  the 
embassy  or  legation  in  the  country  in  which  the  consulate  is  situated, 
and  to  this  Department. 

"American  citizens  resident  abroad  are  required  to  register  each  year, 


PROOF   OF  CITIZENSHIP  NECESSARY.      CONSULAR  REGULATIONS     671 

and  any  additional  facts  concerning  residence,  marriage,  and  children 
should  be  noted  in  the  register,  but  the  full  registration  having  been 
made  once  need  not  be  repeated  on  each  subsequent  registration."  ^ 

"Elihu  Root" 

The  circular  of  November  30,  1907,  instructs  consuls  specifically 
to  apply  to  appUcants  for  registration  the  rules  of  the  circular  of  April  19, 
1907  entitled  "Expatriation,"^  which  embodies  the  provisions  of  the 
Act  of  March  2,  1907  and  certain  rules  of  evidence  for  overcoming 
the  presumption  of  expatriation.  Consuls  are  informed  that  the  De- 
partment expects  them  "to  use  their  best  endeavors  to  secure  the 
registration  of  all  American  residents  in  their  districts,"  although 
the  registration  of  travellers  and  brief  sojourners  is  not,  under 
ordinary  circumstances,  contemplated.  The  supplementary  circular 
instruction  of  ]\Iarch  2,  1908,  informs  consuls  that  applications  for  reg- 
istration need  not  in  ordinary  cases  be  made  in  the  form  of  an  affi- 
davit.^ A  further  circular  of  June  21,  1909  requires  the  consul  to 
insert  in  the  register  and  the  certificate  "the  local  address  of  the  person 
registering  and  the  name  and  address  of  the  nearest  relative  in  America 
with  whom  it  would  be  necessary  to  communicate  in  the  event  of 
any  serious  accident  to  or  death  of  the  person  registered."  In  a 
circular  instruction  of  December  21,  1914,  diplomatic  and  consular 
officers  are  informed  that  in  the  issuance  of  emergency  passports 
and  the  renewal  of  Departmental  passports,  consular  registration 
certificates  should  not  be  accepted  as  conclusive  evidence  of  citi- 
zenship. 

Attention  has  already  been  given  to  the  circulars  of  April  19,  1907 
regarding  the  registration  of  women  who  desire  to  resume  or  retain 
American  citizenship  ^  and  the  registration  of  children  of  American 
citizens  born  abroad.^  The  circular  of  January  18,  1908  authorizes 
consuls  to  enter  the  name  of  a  Japanese  wife  with  the  registration 
of  her  husband,  for  the  certificate  of  registration  merely  states  that 

^  Circular  instruction,  Registration  of  American  citizens,   April  19,  1907,   For. 
Rel.,  1907,  I,  6-7. 
2  Infra,  §  319. 

*  Circular  Instruction,  "Applications  for  registration,"  March  2,  1908. 
«  For.  Rel.,  1907,  I,  10,  supra,  §§  265,  267. 
»/Wd.,  1907,  I,  9,  supra,  §  271. 


672  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

the  head  of  the  family,  to  whom  it  is  issued,  is  an  American  citizen, 
and  does  not  state  specifically  that  his  wife  and  children  are 
citizens.^ 

A  circular  of  December  9,  1911  authorizes  consular  officers  to  regis- 
ter citizens  of  Porto  Rico  and  the  Philippines,  under  the  terms  of  the 
Acts  of  April  12,  1900  and  July  1,  1902,  respectively.  The  citizens 
in  question  are  "required  to  produce  sworn  applications  as  to  birth 
and  residence,  accompanied  by  the  best  documentary  evidence  pro- 
curable that  they  were  Spanish  subjects  at  the  time  of  the  annexation 
of  the  islands,"  and  their  statements  must  be  supported  "by  affidavits 
of  two  credible  persons,  as  in  applications  for  insular  passports."  Du- 
plicate certificates  of  registration  are  not  to  be  issued  to  persons  claim- 
ing citizenship  of  Porto  Rico  or  the  Philippines  until  their  applications 
have  been  approved  by  the  Department.- 

The  circular  of  April  19,  1907  provides  that  registration  shall  be 
made  before  principal  consular  officers,  but  inasmuch  as  registration 
is  optional  and  not  mandatory,  it  is  possible  that  registration  at  lega- 
tions or  before  diplomatic  agents  would  serve  the  same  purposes. 

The  provisions  of  local  legislation  in  various  countries  requiring 
foreigners  to  be  registered  or  matriculated  in  the  office  of  a  local  author- 
ity as  a  condition  precedent  to  the  enjoyment  of  certain  domestic 
privileges  have  been  recognized  as  valid  by  the  United  States.  A 
similar  provision  debarring  foreigners,  not  matriculated,  from  the 
diplomatic  protection  of  their  own  government  has  been  vigorously 
opposed  by  the  United  States,  on  the  ground  that  the  "evidence  of 
the  foreign  status  of  an  individual  consists  of  the  facts  as  they  exist, 
or  of  the  authentic  certification  of  his  own  government,  as  in  the  form 
of  a  passport";  it  does  not  originate  in  the  compliance  with  the  munici- 
pal statute  of  a  foreign  country.^ 

1  Circular  of  January  18,  1908,  "Issuing  passports  to  or  registering  Japanese  wives 
of  American  citizens  and  their  children  born  in  Japan." 

2  Circular  of  December  9,  1911,  "Registration  of  citizens  of  Porto  Rico  and  the 
Philippine  Islands." 

'  Mr.  Olney,  Sec'y  of  State,  to  Mr.  Dupuy  de  L6me,  Feb.  17,  1896,  For.  Rel., 
1896,  677.  These  attempted  limitations  upon  diplomatic  protection  found  in  the 
legislation  of  various  Latin-American  countries  are  considered  at  greater  length  in 
Chapter  VII,  infra,  §  394. 


OTHER  CONDITIONS  073 

OTHER    CONDITIONS 

§  314.  Fulfillment  of  Duties  of  Citizenship. 

Other  conditions  imposed  by  governments  upon  an  applicant  for 
diplomatic  protection  contemplate  a  fulfillment  of  his  duties  of  alle- 
giance and  an  absence  of  all  censurable  conduct  justifying  the  state 
in  withholding  or  withdrawing  its  protection.  Several  European 
governments,  like  France/  for  example,  forbid  their  diplomatic  and 
consular  representatives  to  protect  citizens  who  have  failed  to  submit 
to  the  obligations  of  military  service.  In  the  following  chapters,^  at- 
tention will  be  directed  toward  those  acts  of  the  claimant  which  have 
operated  as  a  forfeiture  of  the  right  to  diplomatic  protection. 

'  Circular  of  June  16,  1873,  renewed  by  that  of  Nov.  5,  1905;  Pillaut,  Manuel  de 
droit  consulaire,  Paris,  1910,  §  139. 
*  Injra,  §§  315  ei  seq. 


CHAPTER  II 

FORFEITURE    OF    PROTECTION    BY    ACT    OF    CITIZEN. 

EXPATRIATION 

§  315.  Recognition  as  an  Individual  Right.    History  in  United  States. 

Expatriation,  or  the  voluntary  renunciation  or  abandonment  of 
citizenship  and  allegiance,  is  obviously  the  most  direct  method  by  which 
diplomatic  protection  may  be  forfeited.  As  in  the  case  of  emigration,^ 
it  is  only  within  the  last  fifty  years  that  states  have  come  to  recognize 
that  the  feudal  theory  of  indissoluble  allegiance  is  an  anachronism, 
and  that  the  individual  has  the  right  to  change  his  domicil  and  nation- 
ality, although  the  reciprocity  of  obligation  between  the  individual 
and  the  state  of  which  he  is  a  member  still  requires,  in  many  states, 
the  consent  of  the  government  to  a  recognition  of  the  change  of  al- 
legiance.^ 

1  Bar,  L.  von,  Theory  and  practice  of  private  international  law,  Edinburgh,  1892, 
pp.  145-147. 

^  The  countries  of  Europe  in  which  mihtary  service  is  compulsory  do  not  recoe;- 
nize,  except  so  far  as  they  have  become  bound  by  treaty,  the  expatriation  of  their 
subjects,  without  the  consent  of  the  state  or  the  prior  performance  of  mihtary  duty. 
Supra,  §  238.  Even  the  naturahzation  treaties  recognizing  expatriation  do  not  re- 
heve  the  expatriated  person  from  obhgations  incurred  prior  to  emigration,  should 
he  return  to  his  native  country.  The  following  countries  of  Europe  have  not  con- 
cluded naturahzation  treaties  with  the  U.  S.  recognizing  the  expatriation  of  their 
subjects:  P>ance,  Italy,  Switzerland,  The  Netherlands,  Roumania,  Servia,  Spain, 
Russia  and  Turkey,  Supra,  §  239.  Russia  and  Turkey  still  maintain  the  doctrine 
of  indelible  allegiance,  and  deny  the  right  of  voluntary  expatriation,  except  in  thc^ 
case  of  the  marriage  of  native  women  to  aliens.  In  practically  all  the  other  countries 
of  Europe,  the  consent  of  the  state  is  obtainable  upon  proof  of  the  fulfillment  of 
military  obligations.  The  various  attitudes  of  governments  on  the  question  of 
expatriation  are  set  forth  in  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  12  and  are  discussed 
supra,  p.  544  and  infra,  p.  684. 

Publicists  now  universally  admit  that  a  citizen  has  the  general  right  of  expatria- 
tion in  time  of  peace,  and  in  the  absence  of  prohibition  or  qualification,  the  assent 
of  the  government  is  imphed.    E.  g.,  Bluntschli,  art.  372;  Bar,  §  60;  Fiore,  4th  ed., 

674 


RECOGNITION  AS  AN  INDIVIDUAL  RIGHT.      HISTORY  IN  UNITED  STATES      675 

In  the  development  of  the  policy  of  the  United  States  the  doctrine 
of  expatriation  has  experienced  numerous  vicissitudes.^  The  courts 
of  the  United  States,  prior  to  1868,^  generally  accepted  the  common 
law  doctrine  of  perpetual  allegiance,  Chancellor  Kent  laying  down 
the  rule  "that  a  citizen  cannot  renounce  his  allegiance  to  the  United 
States  without  the  permission  of  government."  ^  While  the  views  of 
the  executive  department  of  the  government  were  by  no  means  con- 
sistent, the  opposite  doctrine,  namely,  the  freedom  of  expatriation, 
was  generally  maintained.  In  this  connection,  it  must  be  remembered 
that  the  question  was  considered  by  the  executive  practically  always 
from  the  point  of  view  of  a  foreigner  abjuring  his  native  allegiance 
to  become  a  citizen  of  the  United  States.  In  some  cases  the  United 
States  disavowed  any  intention  to  protect  a  naturalized  citizen  in 
his  native  country  when  the  latter,  by  its  municipal  law,  still  considered 
him  as  its  subject.^  Buchanan  during  the  years  1845-1848  was  the 
first  Secretary  of  State  to  announce  the  unqualified  right  of  expatria- 
tion, namely,  that  naturalization  clothes  the  individual  with  a  new 
allegiance  and  releases  him  from  the  obligation  of  the  old;  ^  and  after 

i\rt.  653;  Bonfils,  §  417;  Stoerk,  in  2  R.  G.  D.  I.  P.  (1895),  287;  Halleck,  1908  ed.,  I, 
ch.  XII,  §  29. 

'  On  the  American  law  governing  expatriation  see  Van  Dyne,  Citizenship,  Roches- 
ter, 1904,  §§89-99;  Van  Dyne,  Naturalization,  Washington,  1907,  pp.  333-362; 
Moore's  Dig.  Ill,  §§  431-440;  466-473;  Moore,  J.  B.,  American  diplomacy.  New 
York,  1905,  chap.  VII;  Report  of  Citizenship  Board,  H.  Doc.  326,  59th  Cong.,  2nd 
sess.,  12-13,  23-28;  160-168;  Opinions  of  executive  officers,  and  appendixes,  For. 
Rel.,  1873,  II,  1185  et  seq. 

2  Inglis  II.  Trustees  of  the  Sailor's  Snug  Harbor,  3  Pet.  99;  Shanks  v.  Dupont, 
3  Pet.  242,  246;  The  Santissima  Trinidad,  7  Wheat.  283.  Contra,  Alsberry  v.  Hawkins, 
9  Dana  (Ky.),  178.  These  and  some  other  cases  are  considered  in  Comitis  v.  Parker- 
son,  56  Fed.  556,  558-561.  See  also  Moore's  Dig.  Ill,  §  432,  and  H.  Doc.  326,  59th 
Cong.,  2nd  sess.,  160-161. 

^  2  Kent's  Commentaries,  marg,  49.  See  also  the  views  of  Story  set  forth  in  Moore, 
American  diplomacy,  171-172.  It  was  recognized  by  Kent  and  by  the  Suprem.e 
Court  in  Shanks  v.  Dupont  that  this  theory  of  perpetual  allegiance  was  inconsistent 
with  our  naturalization  laws,  but  it  was  said  that  only  Congress  could  correct  the 
inconsistency. 

*  See  Mr.  Wheaton's  celebrated  declaration  in  Knoche's  case  in  Prussia,  July  24, 
1840,  Moore's  Dig.  Ill,  564  and  sxipra,  p.  542.  See  also  Sec'y  of  State  Webster, 
Everett  and  Marcy,  Moore's  Dig.  HI,  §  436.  See  also  Cushing,  Atty.  Gen.,  Oct.  31, 
1856,  in  8  Op.  139  and  Moore,  American  Diplomacy,  177. 

»  Moore's  Dig.  Ill,  §  435. 


070  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

1857,  when  Buchanan  became  President,  the  doctrine  was  reasserted 
in  all  its  force.  ^  The  increase  of  immigration,  with  the  growing  demand 
for  the  protection  of  naturalized  citizens  returning  to  their  native 
countries,  also  influenced  the  views  of  the  Executive,^  until  finally 
in  1808,  following  the  arrest  in  Ireland  as  British  subjects  of  certain 
naturalized  American  citizens  of  British  origin,  implicated  in  the 
Fenian  agitation.  Congress  passed  an  Act  in  which  it  was  declared 
that  "the  right  of  expatriation  is  a  natural  and  inherent  right  of  all 
people"  and  that  "any  declaration,  instruction,  opinion,  order,  or 
decision  of  any  officer  of  this  government  which  denies,  restricts,  im- 
pairs, or  questions  the  right  of  expatriation"  is  "inconsistent  with 
the  fundamental  principles  of  this  government."  ^  Almost  at  the  same 
time  a  number  of  naturalization  treaties  with  various  states  of  Europe 
were  concluded  and  in  1870  Great  Britain  departed  from  its  time- 
honored  position  by  recognizing  the  right  of  voluntary  expatriation 
of  British  subjects. 

Since  1808,  the  courts  ^  and  the  Executive  ^  have  with  practical 
uniformity  sustained  the  right  of  an  alien  to  abjure  his  native  allegiance 
and  by  becoming  a  citizen  of  the  United  States  to  clothe  himself  with 
the  right  of  American  citizenship  and  protection  as  against  all  nations. 
While  the  legislative  declaration  of  the  equality  of  native  and  natural- 
ized citizens  abroad  was  confirmed  in  numerous  expressions  of  execu- 
tive opinion,  nevertheless,  as  has  already  been  observed,®  a  distinc- 
tion was  made  between  persons  who  emigrated  to  the  United  States 
under  a  prospective  liability  to  military  service  which  had  not  yet 

>  Moore's  Dig.  Ill,  §  437. 

"^  The  expressions  of  executive  opinion  during  Buchanan's  administration  are  set 
forth  in  Moore's  Dig.  Ill,  §  437.  See  especially  Atty.  Gen.  Black's  opinion  in  Ernst's 
case,  July  4,  1859,  9  Op.  356.  See  also  Moore,  American  diplomacj^  178-182.  For 
the  position  of  the  U.  S.  during  the  Civil  War,  see  Moore's  Dig.  Ill,  §  438. 

3  15  Stat.  L.  223,  R.  S.,  §  1999,  1  Fed.  Stat.  Ann.  788.  The  language  of  R.  S., 
§§  2000  and  2001  {supra,  p.  460)  was  also  included  in  the  Act  of  1868.  For  the  history 
of  the  Act  of  1868  see  Moore's  Dig.  Ill,  §  439  and  American  diplomacy,  183-188. 

^  Green  v.  Salas  (1887),  31  Fed.  106,  113;  In  re  Look  Tin  Sing  (1884),  21  Fed. 
905,  90S;  Browne  v.  Dexter  (1884),  66  Cal.  39  (expatriation  of  American  citizen): 
fn  re  Rodriguez  (1897),  81  Fed.  .337,  354;  Boyd  v.  Nebraska  (1892),  143  U.  S.  135, 161. 

'•>  Extracts  printed  in  2  Wharton,  §  171  and  in  Moore's  Dig.  Ill,  §  440. 

•  Supra,  p.  539. 


COUNTRIES  NOT  RECOGNIZING  EXPATRIATION  AS  INDIVIDUAL  RIGHT      677 

matured,  and  those  who  emigrated  to  evade  military  duties  which 
had  already  been  fixed  upon  them.  It  was  admitted  that  upon  re- 
turn to  their  native  countries  the  latter  class  could  not  make  use  of 
their  American  naturalization  to  escape  obligations  and  penalties 
incurred  prior  to  their  original  emigration  to  the  United  States.  Even 
in  the  naturalization  treaties,  beginning  with  the  epoch-making  Ban- 
croft treaties,  which  the  United  States  has  succeeded  in  concluding 
with  various  countries,^  and  in  which  the  right  of  expatriation  under 
certain  conditions  is  recognized,  this  principle  of  continued  liability 
in  the  native  country  for  obligations  incurred  prior  to  emigration 
is  admitted.^ 

§  316.  Diplomatic  Relations  with  Countries  not  Recognizing  Expa- 
triation as  Individual  Right. 

In  its  diplomatic  relations  with  countries  with  which  no  naturaliza- 
tion treaties  have  been  concluded,  the  United  States  has  often  been 
unsuccessful  in  securing  recognition  for  its  supposedly  traditional 
doctrine  of  voluntary  expatriation.^  This  is  due  to  the  fact  that  every 
independent  state  possesses  exclusive  territorial  sovereignty  and  is 
entitled  to  its  own  views  as  to  the  nature  and  extent  of  the  right  of 
expatriation,  and  as  international  law  embodies  no  rules  concerning 
naturalization,  the  effect  of  naturalization  upon  previous  citizenship 
is  a  matter  governed  by  the  municipal  law  of  the  states  directly  con- 
cerned.'* Thus,  however  morally  wrong  may  be  the  Russian  and  Turk- 
ish principle  of  perpetual  allegiance,  the  United  States  has  been  un- 
able to  impress  its  views  as  to  the  right  of  voluntary  expatriation 
upon  the  Russian  and  Turkish  governments  so  as  to  secure  for  natural- 
ized American  citizens  of  Russian  or  Turkish  origin  a  release  from 
their  native  allegiance.  Similarly,  in  countries  like  France,  Servia 
and  others,  where  by  municipal  law  governmental  consent  or  the 
performance  of  mihtary  duty  is  a  condition  precedent  to  a  change 
of  allegiance,  mere  naturalization  in  the  United  States  is  regarded 
as  without  effect  upon  native  allegiance  when  the  preliminary  condi- 

» Supra,  §  239. 

*  Supra,  p.  549. 

»  Supra,  §§  2.37,  238. 

*  Taylor,  227;  Halleck,  3rd  ed.,  I,  411;  Oppenheim,  I,  359. 


0)78  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

tion  remains  unfulfilled.^  It  would  seem,  therefore,  that  in  the  absence 
of  consent  or  treaty,  naturalization  abroad  has  within  the  limits  of 
the  country  of  origin  no  other  effect  than  the  government  of  that 
country  may  be  willing  to  concede. 

§  317.  Inconsistencies  of  Law  and  Practice  with  Principles  of  Act  of 
1868. 

Attention  may  be  called  to  various  inconsistencies,  in  the  law  and 
practice  of  the  United  States,  with  the  high-sounding  phrases  of  the 
Act  of  1868.  Inasmuch  as  expatriation  has  been  said  to  include  both 
emigration  and  naturalization,^  it  seems  clear  that  laws  which  restrict 
naturalization  to  free  white  persons  and  those  of  African  nativity, 
excluding  other  races,  violate  the  declaration  that  expatriation  "is  a 
natural  and  inherent  right  of  all  people."  Again,  the  occasional  execu- 
tive admission  that  naturalized  citizens,  natives  of  a  country  which  does 
not  recognize  the  validity  of  their  expatriation,  owe  in  international 
law  a  dual  allegiance  would  signify  a  contradiction  to  the  doctrine 
embodied  in  the  Act  of  1868  that  naturalization  invests  the  individual 
with  a  new  and  single  citizenship  and  absolves  him,  therefore,  from 
the  obligations  of  any  former  allegiance.  So  again,  while  the  courts 
have  found  in  the  Act  of  1868  that  governmental  consent  to  expatria- 
tion, the  absence  of  which,  prior  to  1868,  led  the  courts  generally  to 
deny  the  right  of  expatriation,  the  Act  of  March  2,  1907  would  seem 
to  repudiate  that  unqualified  consent  and  right  by  providing  ''that 
no  American  citizen  shall  be  allowed  to  expatriate  himself  when  this 
country  is  at  war."  ^  However  strongly  we  may  uphold  the  principle 
that  it  is  the  duty  of  governments  under  proper  restrictions  to  permit 
the  expatriation  of  their  nationals,  a  duty  which  most  governments 
now  fulfill,  the  conclusion  is  inevitable,  both  under  international  and 
municipal  law,  that  there  is  no  such  thing  as  the  inalienable  and  in- 
hei'ent  I'ight  of  a  citizen  to  expatriate  himself. 

'  Supra,  §  238. 

2  Black,  Atty.  Gen.,  in  Ernst's  case,  9  Op.  356,  Bluntschli,  .5th  ed.,  art.  371  and 
Fiore,  4th  ed.,  art.  654,  to  the  effect  that  the  old  nationality  subsists  until  a  new  one 
is  acquired.  Supra,  p.  567.  Other  publicists,  more  in  conformity  with  the  practice 
of  most  states,  dispute  that  ex|)atriation  requires  naturalization  abroad.  E.  g.,  Bar, 
§  60  and  note,  in  which  he  criticizes  the  views  of  Stoerk. 

>  Act  of  March  2,  1907,  §  2;  34  Stat.  L.  1228. 


EXPATRIATION   OF   AMERICAN    CITIZEN  679 

§  318.  Expatriation  of  American  Citizen. 

Turning  now  to  the  special  question  of  present  interest — the  right 
of  an  American  citizen  to  expatriate  himself — it  will  be  found,  as  al- 
ready observed,  that  the  courts  prior  to  1868  appear  in  several  cases 
to  have  denied  the  right  in  the  absence  of  an  authorizing  statute  of 
Congress.^  Chief  Justice  Marshall  in  1804,  however,  declared  that 
a  citizen  who  made  himself  the  subject  of  a  foreign  power,  thereby 
placed  himself  out  of  the  protection  of  the  United  States.-  Before 
1868,  there  was  no  federal  legislation  concerning  expatriation,  and 
the  Act  of  that  j^ear,  apart  from  its  high-sounding  preamble,  deals 
only  with  the  protection  of  aliens  by  birth  who  have  become  citizens 
of  the  United  States.  Since  1868,  the  courts  have  generally  held  that 
the  Act  declares  the  right  of  an  American  citizen  to  expatriate  himself.^ 
But  a  change  of  domicil  has  been  held  essential  to  a  change  of  allegiance,* 
and  it  has  been  noted  that  with  one  exception,  up  to  1907,  in  the  case 
of  the  marriage  of  an  American  woman  to  an  alien — in  which  denation- 
alization is  now  almost  universally  admitted — no  change  of  citizenship 
without  change  of  domicil  was  recognized.  The  preamble  of  the  Act 
of  1868  was  held  by  Attorney-General  Williams  in  1873  to  comprehend 
our  own  citizens  as  well  as  aliens,^  and  the  Executive  had  in  fact  from 
the  beginning  recognized  that  an  American  citizen  could  bj-  appro- 
priate steps  divest  himself  of  his  American  citizenship.  Nor  is  proof 
of  the  acquisition  of  another  nationality  any  longer  required  as  a  con- 
dition of  expatriation. 


1  Supra,  p.  675,  notes  2  and  3. 

2  Murray  v.  The  Charming  Betsy  (1804),  2  Cranch,  64,  119  {dictum).  He  had 
reference,  however,  to  commercial  domicil  only. 

» Jennes  v.  Landes  (1897),  84  Fed.  73;  Browne  v.  Dexter  (1884),  66  Cal.  39;  U.  S. 
V.  Wong  Kim  Ark  (1898),  169  U.  S.  649,  704  (dictum). 

*  Talbot  V.  Janson,  3  Dall.  133;  The  Santissima  Trinidad,  7  Wheat.  283,  9  Op.  Atty. 
Gen.  62.  Except  in  the  case  of  women  married  to  aliens,  this  is  practically  a  universal 
rule.  The  question  whether  the  American-born  wife  of  an  aUen  who  remains  within 
the  jurisdiction  of  the  United  States  can  legally  be  deprived  of  her  citizenship,  i.  e., 
expatriated,  as  Congress  has  provided  by  the  Act  of  1907,  will  be  squarely  presented 
to  the  U.  S.  Supreme  Court  in  the  appeal  from  the  decision  of  the  CaUfornia  Supreme 
Court  in  McKenzie  v.  Hare,  supra,  p.  602. 

6 14  Op.  Atty.  Gen.  295. 


680  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

§  319.  Methods  of  Expatriation. 

Although  Congress  in  1868  asserted  the  abstract  right  of  expatria- 
tion, it  did  not  until  1907  declare  when  and  under  what  circumstances 
a  native  citizen  of  the  United  States  shall  be  deemed  to  have  lost  his 
citizenship.^  The  Department  of  State,  therefore,  in  the  absence 
of  any  statutory  definition  of  the  modes  of  expatriation  had  to  deter- 
mine each  case  on  its  particular  merits,  with  results  by  no  means  con- 
sistent. As  will  be  observed  hereafter,  prolonged  residence  abroad 
has  often  been  held  to  create  a  presumption,  rebuttable  by  appropriate 
evidence,  of  the  renunciation  of  citizenship  and  protection.^ 

The  Act  of  March  2,  1907  prescribes  four  methods  by  which  expatria- 
tion may  be  effected;  (1)  by  naturalization  in  a  foreign  state;  (2)  by 
taking  the  oath  of  allegiance  to  a  foreign  state;  (3)  by  marriage  of 
an  American  woman  to  a  foreigner;  and  (4)  by  residence  abroad,  for 
certain  periods  of  time,  on  the  part  of  a  naturalized  citizen.  The 
principal  provisions  of  the  Act  read : 

"That  any  American  citizen  shall  be  deemed  to  have  expatriated 
himself  when  he  has  been  naturalized  in  any  foreign  state  in  conformity 
with  its  laws,  or  when  he  has  taken  an  oath  of  allegiance  to  any  foreign 
state  (§  2). 

"That  any  American  woman  who  marries  a  foreigner  shall  take  the 
nationality  of  her  husband  (§  3). 

"When  any  naturalized  citizen, shall  have  resided  for  two  years  in 
the  foreign  state  from  which  he  came,  or  for  five  years  in  any  foreign 
state,  it  shall  be  presumed  that  he  has  ceased  to  be  an  American  citi- 
zen .  .  .  Such  presumption  may  be  overcome  on  the  presentation  of 
satisfactory  evidence  ..."  (§2). 

It  is  expressly  provided  "that  no  American  citizen  shall  be  allowed 

to  expatriate  himself  when  this  country  is  at  war."  '    It  has  also  been 

held  that  a  corporation  cannot  expatriate  itself.'* 

*  President  Grant  urged  Congress  to  define  the  acts  which  shall  work  expatriation. 
For.  Rel.,  1875,  I,  vii;  1874,  x. 

2  Infra,  §  326. 

^  The  public  policy  upon  which  this  provision  is  based  is  set  forth  in  H.  Doc.  326, 
59th  Cong.,  2nd  sess.,  28.  See  also  Cockburn,  Nationality,  201-202;  Halleck,  Inter- 
national law,  London,  1908,  1,  ch.  XII,  §  29.  Duer  on  Marine  Insurance,  1,  lecture  5, 
§  35.  The  Santissima  Trinidad,  7  Wheat.  283,  347  (dictiun).  A  somewhat  similar 
rule  appears  to  prevail  in  Great  Britain.  R.  v.  Lynch  ( 1903),  1  K.  B.  444;  Foote,  J.  A., 
Foreign  and  domestic  law,  3rd  ed.,  London,  1904,  pp.  4,  7. 

*  North  and  South  American  Construction  Co.  (U.  S.)  v.  Chile,  Aug.  7,  1893, 
Moore's  Arb.  2319. 


METHODS   OF    EXPATRIATION  681 

Full  consideration  has  already  been  given  to  the  citizenship  of  married 
women/  and  in  a  subsequent  section  ^  the  effect  of  prolonged  residence 
abroad  upon  citizenship  and  protection,  both  in  the  case  of  native 
and  of  naturalized  citizens,  is  to  be  discussed,  together  with  the  methods 
of  overcoming  any  resulting  presumption  of  expatriation.  For  the 
present,  therefore,  attention  will  be  confined  to  the  two  most  direct 
methods,  foreign  naturalization  and  oath  of  allegiance  to  a  foreign 
state,  by  which  expatriation  may  be  effected. 

Even  before  the  Act  of  1907,  the  political  department  of  the  govern- 
ment uniformly  recognized  foreign  naturahzation  as  a  valid  method 
of  expatriation.^  Other  formal  acts  of  renunciation  of  American  citizen- 
.ship  with  intent  to  become  a  citizen  of  a  foreign  country  had  also  been 
admitted  as  having  this  effect.^  While  the  forms  of  naturalization 
abroad  may  differ  from  those  known  to  our  law,  if  they  are  voluntarily 
undertaken  by  an  American  citizen  with  knowledge  of  their  legal 
effect  his  denationalization  will  be  recognized.^  Although  requests 
have  frequently  been  made  upon  the  Department  of  State  for  certifi- 
cates admitting  the  renunciation  of  American  allegiance  on  the  part 
of  a  particular  citizen,  these  have  always  been  refused  on  the  ground 
that  expatriation  is  freely  recognized  by  the  United  States,  and  that 
by   the   mere   fact   of   naturalization   in   a   foreign   country   the  in- 

1  Supra,  §  263  et  seq.  ^ 

2  Infra,  §  326  et  seq. 

3  iMr.  Bayard,  Sec'y  of  State,  to  Count  Sponneck,  Apr.  10,  1888,  For.  Rel.,  1888, 
I,  489;  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  White,  Oct.  2,  1894,  For.  Rel.,  1894,  557; 
Moore's  Dig.  Ill,  714.  It  was  recognized  bj^  the  courts  after  1868.  Browne  v.  Dexter 
(1884),  66  Cal.  39;  Newcomb  v.  Newcomb  (1900),  57  S.  W.  2;  and  in  some  cases 
even  before  1868;  Murray  v.  The  Charming  Betsy,  2  Cranch,  119  {dictum). 

*  WilHanis,  Atty.  Gen.,  in  14  Op.  295,  and  in  14  Op.  15^. 

5  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Smith,  Nov.  6,  1898,  Moore's  Dig.  Ill,  730 
(taking  out  an  allotment  of  land  in  Liberia,  open  to  citizens  only);  Mr.  Seward, 
Sec'y  of  State,  to  Mr.  Foster,  August  13,  1879,  For.  Rel.,  1879,  824  (taking  military 
service  in  Mexico,  thus  becoming  a  naturalized  Mexican);  Martin  (U.  S.)  v.  Mexico, 
July  4,  1868,  Moore's  Arb.  2467;  Prim  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb. 
2482;  von  Bar,  §  59;  Kircher  v.  Murray,  54  Fed.  617;  Mr.  Hay,  Sec'y  of  State,  to 
Mr.  Turley,  Apr.  6,  1899,  Moore's  Dig.  Ill,  735.  In  Martin  (U.  S.)  v.  Me.xico,  July  4, 
1868,  Moore's  Arb.  2467  and  in  Greene  (U.  S.)  i^  Mexico,  ibid.  2756  it  was  held 
that  where  military  service  in  Mexico  conferred  Mexican  citizenship,  American  citi- 
zenship was  lost  during  the  time  of  the  service.  It  is  believed  that  American  citizen- 
ship was  confused  bj^  the  Commission  with  diplomatic  protection. 


682  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

dividual  is  to  be  regarded  as  having  lost  his  rights  as  an  American 
citizen.^ 

The  circular  instruction  of  April  19,  1907  on  expatriation  provides 

that 

"whenever  it  comes  to  the  knowledge  of  a  diplomatic  or  consular  officer 
that  an  American  citizen  has  secured  naturalization  in  a  foreign  state 
in  conformity  with  its  laws,  or  has  taken  an  oath  of  allegiance  to  a  foreign 
state,  such  diplomatic  or  consular  officer  should  certify  to  the  facts 
under  his  seal  and  should  transmit  the  certification  to  [the]  Department. 
If  the  citizen  who  has  thus  acquired  foreign  naturalization  was  a  natural- 
ized citizen  of  the  United  States,  the  fact  should  he  stated  in  the 
certification  and  the  certificate  of  American  naturalization  should,  if 
possible,  be  taken  up  and  forwarded  to  the  Department  with  the  certifica- 
tion." 

A  second  mode  of  expatriation  provided  for  by  the  Act  of  1907  is 
by  taking  an  oath  of  allegiance  to  a  foreign  state.  From  previous 
departmental  rulings  as  to  the  effect  upon  citizenship  of  an  oath  of 
allegiance  to  a  foreign  country,  it  may  be  said  that  the  oath  which 
operates  as  a  method  of  expatriation  must  involve  the  acquirement 
of  citizenship  in  the  foreign  state  and  renunciation  of  American  citizen- 
ship.^ Thus,  at  different  times  it  has  been  held  that  the  oath  taken 
as  a  prerequisite  to  obtain  certain  local  privileges  in  a  foreign  country, 
such  as  the  right  to  fly  the  flag  of  the  country,^  the  right  to  enter  cer- 
tain lines  of  business,^  or  to  practice  certain  professions,^  or  other 
qualified  oath  which  did  not  involve  the  acquirement  of  local  citizen- 

1  Moore's  Dig.  Ill,  714-715;  For.  Rel.,  1908,  29-31. 

2  Mr.  Forsyth,  Sec'y  of  State,  to  Mr.  Emerson,  Jan.  23,  1839,  Moore's  Dig.  Ill, 
719.    See  also  Lord  Enfield  to  Mr.  Rickmers,  Feb.  4,  1871,  61  St.  Pap.  1091. 

3  Extract  from  Life  and  Writings  of  B.  R.  Curtis,  set  forth  in  Moore's  Dig.  Ill, 
721.  In  this  case,  however,  the  citizen  did  not  become  domiciled  in  the  state  of  the 
flag,  Hamburg,  which  fact  had  an  important  bearing  on  the  opinion  rendered. 

^  The  letters  of  domiciHation  issued  in  Cuba  in  the  middle  of  the  last  century. 
Webster's  final  opinion  in  Thrasher's  case,  quoted  in  Moore's  Dig.  Ill,  720-721, 
and  by  J.  Hubley  Ashton,  in  Moore's  Arb.  2702-2703.  Sec'y  Buchanan  regarded 
the  oath  of  fidelity  necessary  to  obtain  the  letters  as  a  deprivation  of  diplomatic 
protection  during  the  residence  in  Cuba.  Moore's  Dig.  Ill,  719.  See  Machado 
(U.  S.)  V.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2567. 

5  To  become  a  Presbyterian  pastor  (Sec'y  Fish  to  Mr.  Whiting,  March  6,  1873)  or 
a  teacher  in  the  public  schools  (Act'g  Sec'y  Davis  to  Mr.  Barnett,  Aug.  20,  1884) 
in  Canada.    Moore's  Dig.  Ill,  722. 


EXPATRIATION — COMPARATIVE   LEGISLATION  683 

ship  or  the  renunciation  of  American  citizenship  did  not  amount  to 
an  act  of  expatriation.  Even  the  oath  of  an  American  citizen  to  serve 
a  foreign  sovereign  faithfully  while  in  his  military  service  may  not 
constitute  expatriation,  unless  the  citizen  so  intends,  although  it  may 
result  in  a  temporary  withdrawal  of  protection  so  long  as  the  foreign 
military  service  lasts. 

In  several  cases  in  Hawaii  prior  to  its  annexation,  the  taking  of  an 
oath  of  allegiance  to  support  the  constitution  and  laws  of  Hawaii 
and  bear  true  allegiance  to  the  King — which  the  Hawaiian  courts 
had  construed  as  naturalization,  notwithstanding  a  reservation  of 
original  citizenship — was  held  by  Secretaries  Gresham,  Olney  and 
Sherman  as  an  effective  loss  of  American  citizenship.^  Mr.  Olney 's 
ruling  leaves  some  doubt  as  to  whether  he  may  not,  in  view  of  the 
reservation  of  native  allegiance,  have  regarded  American  citizenship 
as  merely  temporarily  lost  during  the  period  of  foreign  residence.' 
An  oath  of  allegiance  forced  upon  an  American  citizen  will  be  con- 
sidered equally  as  ineffective  upon  his  status  as  compulsory  naturaliza- 
tion. 

EXPATRIATION — COMPARATIVE   LEGISLATION  ' 

§  320.  Types  of  Legislation. 

It  may  not  be  without  interest  to  make  a  brief  comparative  survey 

*  Cases  in  Hawaii,  Moore's  Dig.  Ill,  725-739.  See  also  Sec'y  Hay  in  certain 
cases  in  Liberia,  ibid.  730.  Secretaries  Frelinghuysen  and  Bayard  had  held  that 
the  oath,  involving  no  renunciation  of  but  expressly  reserving  American  citizenship, 
and  being  required  merely  as  a  condition  for  the  exercise  of  local  political  privileges, 
could  not  be  construed  as  an  act  of  expatriation.  For.  Rel.,  1882,  346  and  For.  Rel., 
1888, 1,  833,  also  printed  in  Moore's  Dig.  Ill,  723-725.  The  oath  at  best  was  anoma- 
lous in  form  and  intent. 

-  Mr.  Olney,  Sec'y  of  State,  to  Mr.  WiUis,  November  13,  1895,  For.  Rel.,  1895,  II, 
867. 

'  In  the  following  works  on  nationality  the  statutory  provisions  of  the  municipal 
laws  of  various  countries  concerning  expatriation  are  printed.  Lehr,  E.,  La  national- 
ite  dans  les  principaux  etats  du  globe,  Paris,  1909;  Sieber,  J.,  Das  Staatsbiirgerrecht 
im  internationalen  Verkehr,  Bern,  1907,  v.  2;  Bisocchi,  Carlo,  Acquisto  e  perdita 
della  nazionalita,  Milano,  1907,  ch.  23  (the  author  in  some  cases  has  failed  to  use 
the  most  recent  statutes);  Cogordan,  George,  La  nationality,  Paris,  1890,  2nd  ed., 
pp.  455  et  seq.  (antiquated  for  many  countries);  Zeballos,  E.  S.,  La  nationality  au 
point  de  vue  de  la  legislation  compar^e  et  du  droit  prive  humain.  Trad.  par.  A.  Bosq., 
Paris,  1914,  2  v.    See  also  Pari.  Pap.,  Great  Britain,  v.  89,  Cd.  7027.  1893-1894; 


684  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

of  the  provisions  of  municipal  law  relating  to  expatriation  in  the  vari- 
ous countries  of  the  world.  Reference  has  already  been  made  ^  to 
the  Report  of  the  Citizenship  Board,  in  which  the  attitudes  of  foreign 
governments  on  the  right  of  expatriation  were  found  to  conform  to 
one  of  six  types,  namely:  (1)  the  right  of  voluntary  expatriation  is 
absolutely  denied,  e.  g.,  Russia  and  Turkey;  (2)  expatriation  is  ad- 
mitted, and  citizenship  ceases  upon  naturalization  abroad,  the  rule 
in  most  countries;  (3)  expatriation  is  admitted,  provided  there  exists 
no  unperformed  military  service,  e.  g.,  France;  ^  (4)  expatriation 
is  admitted,  provided  citizenship  was  renounced  in  the  country  of 
origin  and  in  accordance  with  its  forms  of  law,  e.  g.,  Switzerland;  (5)  ex- 
patriation is  admitted,  and  foreign  naturalization  recognized,  but 
the  rights  of  citizenship  revert  upon  return  to  the  native  country, 
e.  g.,  Venezuela;  (6)  expatriation  is  assumed  from  various  acts,  long- 
continued  residence  abroad,  unauthorized  performance  of  military 
service  on  behalf  of  a  foreign  government,  the  unauthorized  ac- 
ceptance of  public  office  abroad,  and  other  acts  to  be  mentioned 
presently. 

Report  of  Citizenship  Board,  H.  Doc.  326,  59th  Cong.,  2nd  sess.,  Appendix  III. 
Diplomatic  papers  dealing  with  the  law  of  particular  foreign  countries  concerning 
expatriation  are  printed  in  Moore's  Dig.  Ill,  §§  441-465.  Since  the  publication  of 
these  works  the  following  important  countries  have  enacted  new  legislation  concern- 
ing nationality.  Belgium,  law  of  June  8,  1909,  Suppl.  to  4  A.  J.  I.  L.  (1910),  417- 
420;  Glesner,  F.,  Commentaire  de  la  loi,  Namur,  1913;  Italy,  law  of  June  13,  1912, 
text,  Pari.  Pap.  Cd.  6526,  Misc.  No.  1  (1913),  9  R.  D.  I,  Prive,  944  et  seq.,  Clunet, 
(1912),  1309;  comment,  ibid.  1346-1347;  Germany,  law  of  July  22,  1913,  Suppl.  to 
8  A.  J.  I.  L.  (1914),  217-227;  Article  by  Richard  W.  Flournoy,  Jr.,  in  8  A.  J.  I.  L. 
(1914),  477-486;  Meyer,  Th.,  Reichs-  u.  Staatsangehorigkeitsgesetz  vom,  22  juli, 

1913,  Berlin,  1913;  and  extensive  commentaries  by  Cahn  and  Keller  (1914),  cited 
supra,  p.  591;  Laband  in  17  Deutsche  Juristen-Zeitung,  March  15,  1912,  col.  365; 
18  Nouvelle  Rev.  prat,  de  droit  int.  prive  (1912),  97.    Great  Britain,  law  of  Aug.  7, 

1914,  4  &  5  Geo.  5,  ch.  17,  to  a  great  extent  a  recodification  of  earlier  acts,  but  in- 
tended to  unify  naturalization  and  Briti.'ih  nationality  throughout  the  Empire; 
E.  B.  Sargent  in  No.  3  (July,  1914),  Journ.  of  the  Soc.  of  Comp.  Leg.  327-.336.  Vene- 
zuela, law  of  May  24,  1913,  Gaceta  oficial,  May  26,  1913,  Jahrbuch  d.  Viilkerrechts, 
II,  part  I,  337.  The  Haitian  law  of  August  16,  1907,  101  St.  Pap.  305  makes  prac- 
tically no  change  in  matters  of  expatriation,  in  the  previous  law.  The  French  govern- 
ment on  Nov.  22,  1913  introduced  a  bill  to  amend  the  law  of  nationality.  9  R.  D.  I. 
Priv6,  1001.    The  effect  of  treaties  must  always  be  taken  into  consideration. 

*  Supra,  p.  674. 

2  Mr.  Vignaud  to  Mr.  Sherman,  Aug.  2,  1897,  For.  Rel.,  1897.  141-144. 


MODES   OF  EXPATRIATION  685 

§  321.  Modes  of  Expatriation. 

Among  the  modes  of  expatriation,  naturalization  in  a  foreign  country 
is  the  one  most  universally  recognized.  In  some  countries,  such  as 
Austria-Hungary,  Germany  and  Montenegro,  the  recognition  is  con- 
ditioned upon  obtaining  a  certificate  of  manumission  obtainable  upon 
complying  with  certain  statutory  requirements;  in  others,  such  as 
Russia,^  Turkey,  Persia  and  Servia,  upon  written  consent  of  the  gov- 
ernment, not  obtainable  on  compliance  with  statutory  conditions, 
but  subject  to  arbitrary  refusal;  in  others,  such  as  the  United  States,^ 
Germany,'  Nicaragua  and  Salvador,  upon  emigration  from  the  country, 
although  this  may  often  be  required  even  when  not  expressly  so  pro- 
vided; in  others,  such  as  Switzerland,  upon  express  renunciation  in 
the  state  of  origin  of  original  nationality;  and  in  others,  such  as  Japan, 
France,  and  Germany,^  upon  the  preliminary  performance  of  mili- 
tary service.  In  the  Argentine,  naturalization  abroad  results  only 
in  the  loss  of  political  rights,  not  citizenship,  and  in  Germany,  under 
certain  circumstances,  German  nationality  may  be  reserved  at  the 
time  of  naturalization  abroad.^ 

A  second  mode  of  expatriation  applies  particularly  to  women,  and 
results  from  marriage  to  an  alien.  This  is  almost  a  universal  rule, 
but  in  some  countries,  such  as  France,  Belgium,  Italy,  Honduras, 
Mexico,  Nicaragua,  Costa  Rica  and  Venezuela,  it  is  conditioned  upon 
her  acquiring  the  husband's  nationality  according  to  his  national  law; 
in  others,  such  as  Ecuador  and  Guatemala,  upon  her  leaving  the  na- 
tional territory.  In  Brazil  and  in  some  other  countries  of  Latin- America, 
as  well  as  in  Spain,  it  seems  that  marriage  to  an  alien  does  not  dena- 
tionalize a  native  woman.®    In  many  of  the  Latin-American  countries 

'  See  the  recent  rules  of  Russian  law,  reported  from  St.  Petersburg,  June  20, 
1914. 

^  Except  in  the  case  of  married  women.    Stipra,  §  266. 

'  The  person  must  emigrate  one  year  after  obtaining  the  certificate  of  expatria- 
tion, otherwise  it  is  inefTective.    Section  24  of  law  of  1913. 

*  The  certificate  of  manumission  or  expatriation  being  refused.  Section  22  of  the 
law  of  1913. 

*  Section  25  of  the  law  of  1913.  This  provision  was  intended  to  cover  cases  where 
the  enjoyment  of  certain  rights  abroad,  e.  g.,  the  ownership  of  real  estate,  depends 
upon  the  acquirement  of  citizenship. 

^  Octavio  Rodriguez  in  6  Rev.  de  I'lnst.  de  Dr.  Comp.  (1913),  307,  cited  supra, 
p.  594,  note  1;  Alvarez,  op.  cit.,  313. 


686  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

and  in  several  others,  including  the  United  States/  after  dissolution 
of  the  marriage,  by  death  or  otherwise,  the  woman's  nationality  of 
origin  is  resumed  upon  continued  residence  in  or  return  to  the  national 
territory.  It  may  be  noted  that  under  certain  circumstances,  in  Japan  ^ 
and  in  Brazil,^  the  alien  marrying  a  native  woman  takes  her  nation- 
ality. 

Absence  from  the  country  for  a  long-continued  period  without  the 
manifestation  of  an  intent  to  return  involves  expatriation  in  several 
countries,  such  as  Austria-Hungary,  Bolivia,  Bulgaria,''  Denmark, 
Finland,  Luxemburg,  Norway,  Netherlands  and  Sweden.  France 
up  to  1889  recognized  this  mode  of  expatriation,  and  Belgium  and  Ger- 
many have  only  recently  abolished  it.^  In  Spain,  it  is  conditioned 
upon  obtaining  foreign  naturalization.^  The  intent  not  to  return 
is  presumed  from  various  acts:  In  Hungary,  Netherlands  and  the 
Scandinavian  countries,  ten  years'  residence  abroad  either  unauthorized 
or  in  the  absence  of  consular  matriculation  appears  to  estabhsh  the 
conclusiveness  of  the  presumption.  In  Austria  and  Hungary,  it  re- 
quires in  addition  the  failure  to  respond  to  a  call  to  arms,  although 
it  may  be  said  that  many  European  countries  provide  for  this  mode 
of  expatriation  even  in  the  absence  of  prolonged  residence  abroad. 
Many  publicists  are  opposed  to  this  mode  of  expatriation  in  theory, 
although  they  regard  the  loss  of  diplomatic  protection  as  proper. 
Under  the  law  of  several  countries,  such  as  the  United  States,  Cuba, 
Honduras  and  Nicaragua,  naturalized  citizens  give  rise  to  a  presunn)- 
tion  of  expatriation  by  a  return  to  their  native  countries  for  certain 
periods. 

1  The  conditions  and  limitations  have  been  noted,  supra,  §§  265,  267.  J 

*  The  condition  being  that  she  be  the  owner  of  a  house. 

^  Unless  he  manifests  an  intention  to  retain  his  nationality. 

'  Youtcheff,  N.  Y.,  La  Bulgarie  et  I'etranger,  Paris,  1892.  If  he  does  not  heed 
the  7  us  avocandi. 

^  In  Germany,  it  has  been  replaced  by  the  provision  that  a  non-resident  German 
liable  to  military  service  loses  his  citizenship  at  the  end  of  his  thirty-first  year,  if 
he  has  not  obtained  a  decision,  or  postponement  thereof,  concerning  his  liability  to 
serve.  Section  26  of  the  law  of  1913.  On  the  former  rule  still  prevailing  in  several 
countries,  see  Grabowsky  in  12  Verwaltungsarchiv  (1904),  204-259. 

8  Several  publicists,  notably  Stoerk,  Bluntschli  and  Fiore  consider  this  the  correct 
rule.    Supra,  p.  678. 


EFFECT  OF  HUSBAND's  AND   FATHER'S  EXPATRIATION  687 

Entrance  into  the  military  service  of  a  foreign  government,  or  even 
in  some  countries,  the  acceptance  of  political  office,  without  the  pre- 
liminary authorization  of  the  government,  effects  expatriation  in  a 
majority  of  the  countries  of  Latin- America,  and  in  Bulgaria,  France, 
Greece,  Portugal,  Roumania  and  Spain.  In  Europe,  the  penalty  is 
not  often  enforced.  In  some  countries,  such  as  Austria-Hungary, 
Germany  ^  and  Italy,^  expatriation  merel}^  results  from  a  failure  to 
retire  from  the  foreign  service  on  demand  within  a  fixed  time.  The 
unauthorized  acceptance  of  pensions,  decorations  or  titles  from  for- 
eign governments  effects  expatriation  in  the  majority  of  the  Latin- 
American  countries  and  in  Portugal. 

In  several  countries,  particularly  in  some  of  the  Latin-American 
states,^  loss  of  citizenship  is  predicated  upon  conviction  for  crime  and 
sentence  to  an  infamous  penalty,  or  upon  fraudulent  bankruptcy, 
or  upon  abandonment  of  the  country  in  time  of  danger.^  This  confuses 
expatriation  with  the  loss  of  civic  rights.  In  many  of  the  countries 
of  Europe  and  in  the  United  States  the  loss  of  civic  rights  follows 
conviction  for  certain  felonies. 

Miscellaneous  provisions  may  be  found  in  a  number  of  states,  e.  g., 
expatriation  is  effected  in  France  and  Peru,  by  the  possession  of  slaves; 
in  Haiti  and  the  Dominican  Republic,  by  services  rendered  to  the 
enemies  of  the  state,  and  in  other  states,  by  other  means. 

§  322.  Effect  of  Husband's  and  Father's  Expatriation  upon  Wife  and 
Children. 
The  effect  of  the  expatriation  of  a  husband  and  father  upon  the 
members  of  his  family  differs  in  the  various  countries.  His  expatria- 
tion extends  to  his  wife  and  children  in  Germany,^  Great  Britain. 
Japan,  Montenegro,  Norway,  Sweden  and  Spain,  but  sometimes  only 
upon  condition  that  they  leave  the  country,  as  in  Hungary,  Italy  and 

»  Law  of  1913,  §  28. 

2  Law  of  June  13,  1912,  art.  8,  §  3,  39  Clunet  (1912),  1311. 

'  E.  g.,  Bolivia,  Chile,  Colombia,  Dominican  Republic,  Haiti,  Paraguay,  Peru  and 
Uruguay. 

*  Haiti,  Law  of  August  16,  1907,  art.  17,  101  St.  Pap.  365. 

'  If  named  in  the  certificate  of  expatriation  or  manumiajion.  Section  23  of  the 
law  of  1913. 


688  THE  DIPLOMATIC   PROTECTION   OF  CITIZENS  ABROAD 

Nicaragua,  or  that,  by  his  naturalization  abroad,  they  acquire  his 
nationality,  as  in  Switzerland.  In  some  countries,  as,  e.  g.,  in  Bulgaria, 
Brazil  and  Greece,  expatriation  has  no  effect  upon  the  wife  and  chil- 
dren; in  others,  their  special  request  for  its  extension  to  them  is  nec- 
essary, e.  g.,  in  France  (the  wife),  Persia  and  Portugal  (the  children, 
after  reaching  majority);  or  the  wife  may,  by  express  declaration, 
retain  her  former  nationality,  as  in  Great  Britain;  or  it  extends  to  the 
wife  but  not  to  the  minor  children,  as  in  Russia,  and  under  certain 
conditions,  in  the  United  States.  In  some  countries,  e.  g.,  in  Austria, 
Finland,  Germany,  Switzerland  and  Costa  Rica,  the  illegitimate  child 
of  a  national  mother  and  an  alien  father,  acquires,  through  the  sub- 
sequent marriage  of  his  parents  by  reason  of  which  he  is  legitimated, 
the  nationality  of  his  father. 

§  323.  Repatriation. 

There  is  a  certain  variation  from  country  to  country  in  the  rules 
concerning  repatriation.  In  some  states,  such  as  Austria-Hungary, 
Finland,  Great  Britain,  Netherlands,  the  United  States  and  a  few 
Latin-American  countries,  the  expatriated  citizen  must  go  through 
the  process  of  naturalization  like  any  other  alien.  In  Brazil,  Venezuela 
and  other  countries  of  Latin-America,  the  citizen  naturalized  abroad 
who  resumes  his  residence  in  his  native  country  for  two  years  is  deemed 
to  have  become  repatriated.^  An  exception  is  also  made  in  practically 
all  countries  in  the  case  of  a  married  woman,  who  after  the  dis- 
solution of  her  marriage  to  an  alien,  wishes  to  reacquire  her  original 
nationality;  continued  residence  in  or  return  to  the  country,  or 
consular  registration  usually  suffices  to  effect  repatriation.  In  coun- 
tries where  nationality  is  lost  by  the  unauthorized  entrance  into 
foreign  military  service  or  the  acceptance  of  public  office  abroad, 
or  prolonged  absence  for  a  certain  period  or  without  the  manifesta- 
tion of  an  intent  to  return,  the  requirements  for  repatriation  are 
made  much  easier  than  in  the  case  of  the  naturalization  of  the  ordi- 
nary alien. 

*  Venezuelan  law  of  May  24,  1913,  §  7.  Convention  signed  at  Rio  Janeiro  by 
various  American  states,  August  13,  1906,  ratified  by  the  U.  S.,  Jan,  13,  1908,  Treaty 
series,  575.    Supra,  p.  554. 


ACTS  FROM  WHICH  RENUNCIATION  OF  CITIZENSHIP  MAY  BE  IMPLIED      689 
IMPLIED   RENUNCIATION   OF   CITIZENSHIP 

§  324.  True  Meaning  of  the  Phrase. 

Inasmuch  as  Congress  did  not,  until  1907,  define  the  acts  which 
could  be  construed  as  involving  the  expatriation  of  an  American  citi- 
zen, the  Department  of  State  in  passing  upon  the  validity  of  claims 
to  American  citizenship  was  compelled  to  determine  in  its  discretion 
what  acts  were  to  be  regarded  as  evidence  of  expatriation.  Strictly 
speaking,  it  is  beyond  the  competence  of  the  executive,  without  legis- 
lative authorization,  to  declare  a  citizen  to  be  expatriated,  although 
the  extension  or  withdrawal  of  diplomatic  protection  is  within  execu- 
tive discretion.  When  the  citizenship  of  a  native  citizen,  therefore, 
is  declared  to  have  been  impliedly  renounced,  the  right  to  diplomatic 
protection  is  generally  meant;  but  in  view  of  the  fact  that  the  acts 
to  be  mentioned  presently  have  been  construed  as  evidences  of  expa- 
triation, it  has  been  deemed  not  improper  to  consider  them  under 
the  head  of  implied  renunciation  of  citizenship. 

§  325.  Acts  from  which  Renunciation  of  Citizenship  may  be  Implied. 

Besides  formal  naturalization  abroad,  which  was  always  admitted 
by  the  political  department  of  the  government  to  have  the  effect  of 
expatriation,  the  estabUshment  of  a  permanent  residence  abroad,  the 
assumption  of  the  obligations  of  a  subject  of  a  foreign  state,  or  the 
manifestation  of  an  intent  not  to  return  to  the  United  States  have 
at  different  times  been  held  equivalent  to  expatriation,^  although 
it  may  be  said  that  frequently  the  term  expatriation  was  emplo3-ed 
merely  in  the  sense  of  a  forfeiture  of  the  right  to  diplomatic  protection. 

In  certain  countries,  e.  g.,  Norway,  failure  to  register  in  a  consulate 
abroad  within  one  year  after  leaving  the  country  operates  as  an  im- 
plied renunciation  of  citizenship.  A  similar  effect  is  produced  in  the 
United  States,  under  the  Act  of  1907,  by  the  failure  of  the  non-resident 
widows  of  American  citizens  of  native  widows  of  ahens  to  register 
their  intention  to  retain  or  resume  American  citizenship,  and  in  cases 
of  certain  minors,  the  failure  to  register  implies  an  election  of  alienage. ^ 

^  Moore's  Dig.  Ill,  §  466,  and  particularly  the  opinions  of  Attorneys-General 
Black  and  Williams,  there  quoted. 
*  Supra,  §271. 


690  THE  DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

(a)    EFFECT  OF  PROLONGED  RESIDENCE  ABROAD 

§  326.  General  Principles. 

The  individual  act  which  most  often  required  executive  construc- 
tion in  deciding  whether  citizenship  or  protection  had  been  impliedly 
renounced  was  prolonged  residence  abroad.  By  the  Act  of  March  2, 
1907  and  the  recent  rulings  of  the  Department  of  State,  to  be  considered 
presently,  numerous  presumptions  and  criteria  have  been  established, 
both  in  the  case  of  native  and  of  naturalized  citizens,  by  reason  of 
which  the  determination  of  the  effect  of  protracted  residence  abroad 
upon  citizenship  and  protection  has  been  greatly  simplified. 

In  many  state  papers  it  is  declared  that  the  establishment  of  a  per- 
manent domicil  abroad  is  to  be  construed  as  an  act  of  voluntary  ex- 
patriation. Aside  from  the  expatriation  of  an  American  woman  by 
her  marriage  to  an  alien,  the  statutes  of  the  United  States,  however, 
provide  for  only  three  modes  of  expatriation — (1)  naturalization  in 
or  (2)  the  taking  of  an  oath  of  allegiance  to  a  foreign  state,  and  (3)  a 
presumption  of  expatriation  on  the  part  of  a  naturalized  citizen  when 
he  resides  two  years  in  his  native  land  or  five  years  in  any  other  country.* 
The  executive  declarations  in  the  case  of  native  citizens,  therefore, 
to  the  effect  that  long-continued  residence  abroad  without  an  intent 
to  return  to  the  United  States  is  equivalent  to  expatriation  must  be 
understood  merely  as  withdrawing  from  the  person  so  situated  one 
of  the  most  important  privileges  and  incidents  of  citizenship — the 
diplomatic  protection  of  the  United  States. 

The  anomalous  situation  which  ensues  when  persons  migrate  to 
a  foreign  country  to  reside  there  indefinitely,  availing  themselves 
of  its  resources  yet  failing  to  acquire  its  nationality  has  been  often 
brought  to  the  attention  of  this  government  and  of  foreign  govern- 
ments. Neither  our  municipal  laws  nor  international  agreements 
have  as  yet  furnished  a  satisfactory  solution  for  the  difficult  questions 
to  which  this  situation  has  given  rise.  Latin-American  publicists 
have  with  some  justice  complained  of  that  large  class  of  foreigners 
who  reside  permanently  in  Latin-America,  thereby  avoiding  all  the 

1  Act  of  March  2,  1907,  §  2.  To  the  effect  that  nothing  less  than  expatriation 
can  work  a  loss  of  citizenship,  see  9  Op.  Atty.  Gen.  356. 


EFFECT  OF   PROLONGED   RESIDENCE   ABROAD  691 

duties  of  citizenship  to  their  national  state  and  relying  upon  their 
alienage  to  escape  civic  burdens  in  the  state  of  residence.  These  per- 
sons often  marry  abroad,  engage  in  business,  and  identify  themselves 
almost  completely  with  the  people  among  whom  they  reside;  yet  in 
time  of  war  or  revolution  or  trouble,  they  assert  their  alienage,  escape 
military  service,  war  contributions  and  other  civic  obligations,  and  for 
injuries  theymay  sustain  claim  indemnities  through  diplomatic  channels.^ 

It  has  already  been  observed  that  several  countries  of  Europe  con- 
sider departure  from  the  country  without  an  intent  to  return  or  for 
ten  years  as  an  act  of  expatriation.^  A  somewhat  anomalous  situation 
therefore  confronts  the  nationals  of  such  countries  who,  coming  to 
the  United  States,  declare  their  intention  of  becoming  citizens.  Hav- 
ing presumably  done  all  in  their  power  to  sever  the  tie  which  bound 
them  to  their  own  country,  they  are  nevertheless  not  yet  citizens  of 
the  United  States.  Cockburn  emphatically  considers  that  such  per- 
sons during  the  probationary  period  have  no  claim  to  the  protection 
of  their  original  nationality.'  The  United  States  in  this  respect  has 
apparently  shared  the  views  of  those  publicists  who  apply  to  nation- 
ality the  principles  of  the  law  of  domicil  by  holding  that  the  old 
nationality  is  not  put  off  until  the  new  one  is  acquired.  Nevertheless, 
as  has  been  noted,  the  Act  of  1907  ^  provided  for  the  extension  of  a 
limited  right  of  protection  to  persons  who  have  declared  their  intention 
to  become  citizens  of  the  United  States.^ 

While  it  is  universally  admitted  that  a  citizen  residing  abroad  owes 
what  is  inaccurately  designated  as  a  local  or  temporary  allegiance 
to  the  state  of  residence,®  it  is  also  evident  that  a  clear  distinction 
is  and  should  be  made  between  citizens  temporarily  and  citizens  per- 
manently resident  abroad.' 

1  See,  e.  g.,  Lisboa,  Les  fonctions  diplomatiques,  p.  190. 
^  Supra,  p.  689. 

3  Cockburn,  Nationality,  202-203.  See  also  Mr.  Ashton's  argument  on  citizen- 
ship and  domicil,  before  U.  S.-Mexican  commission  of  IS68.    Moore's  Arb.  2701. 

*  Section  1.    Supra,  p.  501. 

^  Dept.  of  State  rules  governing  the  granting  and  issuing  of  passports  to  such 
persons,  November  14,  1913. 

•  Supra,  p.  94. 

'  Phillimore,  II,  6.    Supra,  p.  91.     Tunstall's  case,  in  which  Mr.  Bayard  applied 


692  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

For  purposes  of  discussion,  the  effect  of  long-continued  residence 
abroad  upon  the  right  to  diplomatic  protection  in  the  case  of  native 
citizens  and  of  naturalized  citizens  will  be  considered  separately.  The 
general  effect  of  permanent  domicil  upon  the  alien's  legal  position  in 
the  state  of  residence  has  already  been  discussed.^ 

It  may  be  here  said  that  the  Department  of  State  and  international 
commissions  have  taken  the  view  that  it  is  for  the  protecting  state 
to  determine  the  effect  of  long  residence  abroad  upon  the  right  of  dip- 
lomatic protection.  Thus,  notwithstanding  the  fact  that  by  the  local 
law  of  the  state  of  residence  the  alien  is  considered  to  have  acquired 
citizenship  in  that  state  or  abandoned  his  former  allegiance,  such 
determination  is  not  binding  upon  his  national  state  nor  will  it  serve 
to  deprive  that  state  of  its  right  to  protect  him.  Such  a  result  de- 
pends upon  the  will  of  his  home  state.^ 

§  327.  The  Case  of  Native  Citizens. 

The  Department  of  State's  construction  of  the  effect  on- expatria- 
tion of  the  protracted  residence  abroad  of  a  native  citizen  has  not 
always  been  consistent.  Secretary  of  State  Evarts  held  that  continued 
residence  abroad  does  not  amount  to  expatriation,  unless  the  citizen 

the  rule  of  permanent  residence  to  deny  the  right  of  Great  Britain  to  protect  a  British 
subject  permanently  resident  in  the  United  States.  For.  Rel.,  1885,  459.  At  least, 
so  far  as  the  use  of  the  local  judicial  remedies  was  concerned,  Mr.  Bayard  considered 
him  as  identical  with  a  citizen.  Asst.  Atty.  Gen.  Hoyt  in  For.  Rel.,  1898,  108;  Sec'y 
Seward  in  case  of  Panama  Riot  claims.  Naturalization  Report,  Appendix  64.  Web- 
ster's earlier  view  in  Thrasher's  case  to  the  effect  that  domiciliation  in  Cuba  de- 
prived Thrasher  of  his  American  citizenship  and  right  to  protection  (8.  Ex.  Doc.  10, 
32nd  Cong.,  1st  sess.)  was,  on  fuller  information,  subsequently  changed.  Moore's 
Dig.  Ill,  719-721,  §§  488-489. 

'  Supra,  §  40. 

2  Lynn  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2569,  2570.  See  also  as  to 
effect  of  purchasing  real  estate  in  Mexico,  cases  in  Moore's  Arb.  2468-2482.  This 
conclusion  is  only  partially  shared  by  Mr.  Ashton  in  his  abie  argument  on  citizenship 
and  domicil  before  the  U.  S.-Mexican  commission  of  1868.  If  the  local  state  confers 
citizenship  by  rea.son  of  domicil,  the  alien  would,  said  Mr.  Ashton,  forfeit  his  original 
citizenship  and  right  to  national  protection.  Moore's  Arb.  2696,  2700.  Whatever 
may  be  the  merits  of  this  view,  it  does  not  appear  to  have  the  unreserved  support 
of  the  United  States.  Mr.  Ashton's  point  was  not  directly  involved  in  the  question 
then  under  discussion. 


THE    CASE    OF   NATIVE   CITIZENS  693 

performs  acts  inconsistent  with  his  American  nationality  and  consist- 
ent only  with  the  formal  acquirement  of  another  nationality.^ 

On  the  other  hand,  many  secretaries  of  State  construed  the  effect 
of  residence  abroad  without  an  intent  to  return  to  the  United  States 
as  a  severance  of  that  mutual  relation  of  protection  and  allegiance 
which  lies  at  the  foundation  of  citizenship,  and  withdrew  American 
protection  from  citizens  so  situated.^  Secretary  Marcy  considered 
such  permanent  residence  abroad  as  an  abandonment  of  citizenship  ' 
and  contended  that  the  rule  that  trade  domicil  in  time  of  war  con- 
fers national  character  should  be  extended  in  time  of  peace  so  as  to 
include  citizens  domiciled  abroad."*  Secretary  Fish  in  a  report  of 
August  25,  1873,  expressed  an  opinion  which  was  adopted  by  Secre- 
tary Hay  and  Secretary  Root  as  a  correct  rule :  ^ 

"When  a  person  who  has  attained  his  majority  removes  to  another 
country  and  settles  himself  there,  he  is  stamped  with  the  national  char- 
acter of  his  new  domicil;  and  this  is  so,  notwithstanding  he  may  en- 
tertain a  floating  intention  of  returning  to  his  original  residence  or  citi- 
zenship at  some  future  period,  and  the  presumption  of  law  with  respect 
to  residence  in  a  foreign  country,  especially  if  it  be  protracted,  is  that 
the  party  is  there  animo  manendi,  and  it  lies  upon  him  to  explain  it." « 

These  rigorous  views  have  not  prevailed.  The  rule  more  recently 
applied  is  that  the  mere  fact  that  a  native  citizen  {i.  e.,  a  citizen  of 
the  United  States  by  birth)  resides  abroad,  no  matter  for  how  long 
a  time,  is  not  sufficient  of  itself  to  deprive  him  of  the  diplomatic  pro- 
tection of  the  United  States.  The  important  fact  to  determine  in 
each  case  is  whether  the  citizen  has  manifested  an  intention  not  to 
return  to  the  United  States  and  assume  the  duties  of  citizenship.  Upon 
evidence  of  this  fact,  the  right  of  protection  is  withdrawn. 

1  Mr.  Evarts,  Sec'y  of  State,  to  Mr.  Fish,  Oct.  19,  1880  (Rau's  case),  For.  Rel., 
1880,  960. 

2  Extracts  from  instructions  of  Secretaries  Calhoun,  Webster,  Marcy,  Seward, 
Fish,  and  others,  Moore's  Dig.  Ill,  758  et  seq.  It  is  admitted  by  pubUcists  that 
whatever  its  relation  to  citizenship,  permanent  domicil  abroad  seriously  affects 
the  right  to  diplomatic  protection.    Phillimore,  II,  6;  Hall,  277. 

*  Mr.  Marcy  to  Mr.  Kinney,  Feb.  4,  1855,  Moore's  Dig.  Ill,  759.    See  also  Mr. 
Calhoun  to  Mr.  Fairchild,  Dec.  9,  1844,  ibid.  758. 
<  Mr.  Marcy  to  Mr.  Clay,  May  24,  1855,  ibid.  760. 
5  Circular  of  March  27,  1899  (Hay);  Circular  of  April  19,  1907  (Root). 
•Sec'y  Fiah  to  the  President,  Aug.  25,  1873,  For.  Rel.,  1873,  II,  1186. 


694  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

Interest  lies  then  in  establishing  what  is  the  manifestation  of  an 
intent  not  to  return  to  the  United  States  and  perform  the  duties  of 
citizenship.  Long  continued  residence  and  the  absence  of  any  indica- 
tion of  intention  to  return,^  or  in  addition,  engaging  in  business  abroad, 
marrying  there,  and  identification  with  the  country  of  residence,^ 
or  the  purchase  and  cultivation  of  land  abroad  ^  raise  a  presumption 
that  a  citizen  has  practically  abandoned  his  allegiance  to  his  native 
country  and  with  it  the  right  to  claim  protection  from  the  government 
from  which  he  has  alienated  himself  and  withheld  his  support.^ 

Besides  prolonged  residence  abroad,  the  failure  to  contribute  to 
the  support  of  the  government  by  the  payment  of  taxes  was  in  Secre- 
tary Fish's  administration  made  an  important  criterion  in  determining 
whether  a  citizen  had  abandoned  his  right  to  American  protection.^ 
But  this  test,  like  the  property  test,  is  not  and  has  never  been  a  good 
one.  Under  a  recent  ruling  of  the  Department  of  State,  evidence 
of  the  payment  of  the  income  tax  under  the  Act  of  October  3,  1913, 
will  not  alone  overcome  a  presumption  of  expatriation  which  may 
have  arisen,  although  it  will  be  considered  in  connection  with  other 
evidence  in  determining  the  question  of  intent  to  return  to  this  country 
or  the  right  to  the  continued  protection  of  the  United  States.^ 

The  fact  that  the  American  owner  of  a  registered  vessel  resides 
abroad  has  been  held  to  suspend  the  benefit  of  American  registry 
during  such  foreign  residence.^    The  same  suspension  of  the  privileges 

'  Hepburn's  case,  residence  of  35  years  in  Haiti;  Allen's  case,  residence  of  56  years 
in  Haiti;  Robinson's  case,  residence  of  38  years  in  Mexico;  Rulings  of  Sec'y  of  State 
Fish,  Moore's  Dig.  Ill,  761-752;  Robinson,  however,  appeared  before  international 
commissions  as  an  American  citizen,  Moore's  Arb.  3038,  3410;  33  years'  residence 
in  Scotland,  Sec'y  Olney  to  Mr.  Bendit,  Moore's  Dig.  Ill,  766. 

2  Morris'  case,  Mr.  Gresham  to  Mr.  Smith,  Sept.  1,  1893,  Moore's  Dig.  Ill,  765-, 
Webster,  P.,  Citizenship,  169,  303;  Sec'y  Bayard  to  Min.  to  Switzerland,  Oct.  12, 
1887,  For.  Rel.,  1887,  1073. 

3  Sec'y  Fish  to  Mr.  Williamson,  March  16,  1875,  Moore's  Dig.  Ill,  765;  Burt's 
case,  Sec'y  Fish  to  Mr.  Hackett,  June  12,  1873,  ibid.  774.  (It  was  later  shown  that 
Mr.  Burt's  absence  was  due  to  reasons  of  health.)    The  Venus,  8  Cranch,  253,  281. 

*  Mr.  Bayard  to  Sec'y  of  State  Gresham,  For.  Rel.,  1893,  327-328;  Sec'y  of  State 
Hay  to  Mr.  Porter,  .Jan.  17,  1902,  For.  Rel.,  1902,  407-408;  American  Passport,  210. 
'  Quotations  from  Sec'y  Fish's  in.structions  in  Webster,  P.,  op.  cit.,  165-166. 
« Circular  March  18,  1914  and  infra,  p.  706. 
'  Wirt,  Atty.  Gen.  (1821),  in  \  Op.  Atty.  Gen.  523. 


PRACTICE   UNDER  THE  AMENDED    RULES   OF    1907,    ETC,  695 

of  American  registry  has  been  held  to  follow  the  employment  of  an 
American  vessel  in  foreign  coastwise  trade.  Where  the  owner  of  such 
a  vessel  was  domiciled  in  a  country  which  by  special  license  extended 
the  privileges  of  its  coastwise  trade  to  the  vessel,  Secretary  of  State 
Seward  held  that  the  protection  of  the  United  States  during  such 
employment  was  waived.^ 

§  328.  Practice  under  the  Amended  Rules  of  1907  and  the  Circular 
Instruction  of  July  26,  1910. 

The  recent  statute  of  1907  and  the  rules  of  the  Department  of  State 
issued  thereunder,  particularly  regarding  the  registration  of  American 
citizens  resident  abroad,^  have  vastly  increased  the  number  of  cases 
in  which  the  Department  has  been  required  to  pass  upon  the  effect 
of  residence  abroad  upon  the  right  to  protection.  The  same  general 
principles  govern  applications  for  registration  and  for  passports.  In 
the  circular  governing  registration  it  is  provided  that  the  certificate 
of  registration  shall  not  be  issued  unless  "it  is  clearly  shown  that  the 
residence  abroad  has  not  assumed  a  permanent  character."  In  para- 
graph 4  of  the  rules  governing  the  granting  and  issuing  of  passports,' 
it  is  still  provided  that  the  applicant  must  not  only  state  that  he  in- 
tends to  return  to  this  country,  but  within  what  length  of  time,  al- 
though this  latter  requirement  does  not  appear  ever  to  have  been 
rigidly  enforced.  How  long  the  applicant  could  remain  abroad  with- 
out losing  his  right  to  receive  a  passport  depended,  until  very  recently, 
upon  his  intention  of  returning,  which  was  determined  by  the  circum- 
stances of  his  business  and  social  relations.  But  if  his  absence  was 
to  be  permanent,  he  forfeited  his  right  to  receive  a  passport.^ 

'  Mr.  Seward,  Sec'y  of  State,  to  Mr.  Sullivan,  July  16,  1867,  Dipl.  Cor.,  1868, 
II,  1016,  Dec.  4,  1867,  Moore's  Dig.  II,  1072.  Yet  when  this  case  subsequently 
went  to  arbitration  (the  Monlijo,  (U.  S.)  v.  Colombia,  Aug.  17,  1874,  Moore's  Arb. 
1421)  the  Umpire  held  that  the  claimants  were  not  domiciled  in  Colombia,  and  added 
(.as  dictum)  that  even  if  so  domiciled,  the  "  United  States  would  still  have  the  right, 
under  certain  circumstances,  to  extend  to  them  its  protection." 

2  Act  of  March  2,  1907,  §§  3,  4,  6,  7;  Consular  Regulations,  §  172,  as  amended, 
Circular  Instruction,  Expatriation,  April  19,  1907,  For.  Rel.,  1907,  3. 

*  Issued  by  Prpsident  Wilson,  January  12,  1915. 

*  The  American  passport,  203.  For  a  time  between  1908  and  1910  the  Department 
required  native  citizens  who  resided  in  a  foreign  country  over  ten  years  to  submit 


696  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

In  the  circular  instruction  of  March  27,  1899,  entitled  "Passports 
for  persons  residing  or  sojourning  abroad"  it  is  stated  that  "a  condi- 
tion precedent  to  the  granting  of  a  passport  is  .  .  .  that  the  citizen- 
ship of  the  applicant  and  his  domicil  in  the  United  States  and  intention 
to  return  to  it  with  the  purpose  of  residing  and  performing  the  duties 
of  citizenship  shall  be  satisfactorily  established.^  .  .  .  Even  where 
expatriation  may  not  be  established,  a  person  who  is  permanently 
resident  and  domiciled  outside  of  the  United  States  cannot  receive 
a  passport." 

After    carefully    considering   the    principles    underlying   the   whole 

question  of  the  protection  of  citizens  abroad,  the  Department  of  State 

in  1910  came  to  the  conclusion  that  in  the  case  of  a  native  American 

residing  in  a  foreign  country,  a  definite  intention  to  resume  residence 

in  this  country  should  not  be  made  an  absolute  prerequisite  to  the 

privilege  of  receiving  a  passport  or  certificate  of  registration,  or  if 

necessary,  protection  by  the  United  States.     The  new  ruling  of  the 

Department  is  embodied  in  a  circular  instruction  of  July  26,  1910, 

to  Diplomatic  and  Consular  Officers,  entitled  "Protection  of  native 

Americans  residing  abroad,"  which  may,  with  advantage,  be  quoted 

in  part: 

"In  modern  times  there  has  been  a  vast  improvement  in  facilities  for 
communication  and  transportation  between  the  various  nations  of  the 
earth,  and  a  corresponding  increase  in  international  travel  and  trade, 
and  it  has  become  a  not  unusual  practice  for  citizens  of  one  country 
to  establish  themselves  in  another  country  for  purposes  of  business, 
without  any  intention  of  renouncing  their  original  allegiance.  There- 
fore, it  is  the  Department's  opinion  that  the  acquisition  of  permanent 
foreign  residence  by  a  native  citizen  has  not  the  same  significance  which 
it  had  in  former  years.  It  is  considered  that  an  American  citizen  may 
now  have  a  permanent  foreign  residence  and  yet  contribute,  indirectly 
if  not  directly,  to  the  wealth  and  strength,  the  prestige  and  general 
welfare  of  his  country,  so  that  as  long  as  he  maintains  a  true  allegiance 
to  this  Government  and  is  ready,  if  need  be,  to  come  to  its  defense,  he 
may  be  entitled  to  its  protection. 

sworn  statementB  as  to  the  cause  of  such  residence,  their  ties  of  family  and  property 
within  this  country,  and  their  intention  to  return  to  the  United  States  for  permanent 
residence. 

1  The  exceptions  to  the  rule  governing  loss  of  protection  by  residence  abroad  will 
be  considered  infra.  See  the  instruction  of  Secretary  Bayard  to  Mr.  Winchester, 
Minister  to  Switzerland,  October  12,  1887,  For.  Rel.,  1887,  1073-1074. 


PRACTICE   UNDER   THE   AMENDED   RULES   OF    1907,    ETC.  697 

"  In  each  case  of  an  American  permanently  residing  abroad  it  will  be 
necessary,  before  deciding  as  to  his  right  to  protection,  to  determine 
among  other  things  whether  he  maintains  an  actual  connection  with 
the  United  States  and  a  true  allegiance  thereto,  or  whether  he  has  prac- 
tically abandoned  this  country  and  identified  himself  with  the  political 
community  of  the  land  in  which  he  resides;  and  while,  as  to  questions 
arising  in  regard  to  registration  and  the  issuance  of  passports,  a  lack  of 
intention  to  resume  residence  in  this  country  may,  upon  matters  relating 
to  protection  as  American  citizens,  still  raise  a  presumption  of  expatri- 
ation, such  presumption  shall  not  be  considered  as  conclusive,  but  the 
person  concerned  shall  be  given  an  opportunity  to  show  that  he  is  still 
a  true  citizen  of  the  United  States.  In  this  connection  are  to  be  con- 
sidered the  cause  of  the  foreign  residence,  participation  in  the  politics 
of  the  country  of  residence  or  abstention  therefrom,  ties  of  family,  busi- 
ness, or  property  maintained  with  this  country,  and,  in  the  case  of  a 
married  man,  the  original  nationality  of  the  wife  and  the  mode  of  rais- 
ing the  children,  and,  finally,  the  general  conduct  of  the  person  in  ques- 
tion. It  is  impossible  to  lay  down  a  general  rule  which  will  be  appli- 
cable to  every  case  which  arises,  and  each  case  must  be  decided  upon  its 
peculiar  merits.  You  Avill,  therefore,  not  finally  refuse  a  passport  or  regis- 
tration certificate  to  any  person  belonging  to  the  class  under  considera- 
tion until  you  shall  have  been  authorized  to  do  so  by  the  Department 
after  a  full  presentation  of  the  pertinent  facts." 

The  purpose  of  the  circular  is  to  furnish  tests  and  criteria  by  which 
the  great  and  important  question,  namely,  whether  the  citizen  by  birth 
still  feels  and  bears  true  allegiance  to  the  United  States,  may  be  de- 
termined. 

The  payment  of  the  income  tax  under  the  Act  of  October  3,  1913, 
will  also  "be  duly  considered  in  deciding  the  question  of  the  right 
to  the  continued  protection  of  this  government  in  cases  of  native  citi- 
zens who  have  resided  abroad  for  a  period  so  long  that  the  natural 
presumption  may  be  held  to  have  arisen  that  they  have  abandoned 
this  country."  ^ 

While  these  rulings  modify  the  former  rigid  rule  that  passports 
and  registration  were  to  be  refused  to  Americans  who  were  "perma- 
nently resident  and  domiciled  outside  of  the  United  States,"  the  De- 
partment will  probably  continue,  under  the  ruhngs,  to  decHne  to  ex- 
tend these  evidences  of  citizenship  and  protection  to  that  considerable 
class  of  renegade  Americans  established  in  foreign  countries,  espe- 
cially in  Latin-America,  who  have  no  loyalty  for  the  United  States, 
^Circular  instruction  "Payment  of  the  income  tax,"  etc.,  March  18,  1914. 


698  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

who  fail  to  contribute  in  any  way  to  its  welfare,  who  meddle  in  the 
politics  of  the  countries  in  which  they  live,  never  approaching  our 
diplomatic  or  consular  representatives  until  they  get  into  trouble, 
and  who,  far  from  increasing  the  prestige  of  the  United  States  abroad, 
merely  serve  to  bring  this  country  into  bad  odor  with  foreign  govern- 
ments. 

It  has  already  been  observed  *  that  under  a  uniform  rule  of  the 
Department,  given  statutory  sanction  by  the  Act  of  March  2,  1907, 
a  passport  and  protection  are  denied  to  the  native  citizen  who  leaves 
this  country  at  an  early  age  and  continues  to  reside  abroad  after  at- 
taining majority  without  electing  American  citizenship. 

§  329.  Decisions  of  International  Tribunals  of  Arbitration. 

The  decisions  of  arbitral  commissions  have  been  practically  uniform 
in  concluding  that  domicil  or  residence  in  a  foreign  country  does  not 
denationalize,  unless  there  be  a  distinct  law  to  that  effect  either  in 
the  claimant  or  defendant  country.  Some  brilliant  arguments  have 
been  made  ^  to  show  that  in  an  international  sense  the  term  ''citizens" 
embodied  in  a  protocol  of  arbitration,  was  not  to  be  taken  in  its  strict 
meaning  in  municipal  law  as  denoting  paramount  allegiance  to  a  sover- 
eign, but  in  a  so-called  larger  sense  which  embraced  persons  who  by 
permanent  domicil  were  within  the  protection  of  the  government 
under  which  they  resided.  Such  an  argument,  it  is  believed,  is  founded 
upon  a  failure  to  draw  a  distinction  between  belligerent  domicil  or 
trade  domicil  in  time  of  war,  in  which  the  person's  rights  and  liabilities 
flow  from  his  domicil,  and  ordinary  civil  domicil  in  time  of  peace. 
It  has  already  been  observed  ^  that  international  commissions  have 
frequently  considered  belligerent  domicil  as  conferring  national  charac- 
ter under  the  terms  of  protocols  of  arbitration  and  as  a  principle  of 
international  law,  but  in  the  absence  of  an  express  agreement  it  has 
been  the  general  rule  of  international  commissions,  so  far  as  relates 

1  Supra,  p.  584,  particularly  Mr.  Olney,  Sec'y  of  State,  to  Mr.  von  Reichenau, 
November  20,  1896,  For.  Rel.,  1897,  182. 

2  See,  e.  (j.,  Hale's  and  Hoar's  arguments  before  British-American  Commission 
under  protocol  of  May  8,  1871,  paraphrased  in  Moore's  Arb.  2722-2725,  and  in 
Hale's  Report,  11-13. 

» Supra,  §  246. 


DECISIOXS    OF   INTERNATIONAL   TRIBUNALS   OF   ARBITRATION       699 

to  the  question  of  jurisdiction,  to  consider  the  national  character  of 
the  party  to  be  determined  by  his  paramount  allegiance,  irrespective 
of  the  fact  of  domicil.^ 

The  few  decisions  of  arbitral  commissions  which  have  predicated 
a  loss  of  citizenship  or  protection  upon  long-continued  residence  abroad 
were  based  either  upon  the  law  of  the  claimant  country  according 
to  which  such  a  result  followed  long  residence  abroad,  or  upon  excep- 
tional grounds.-  The  British- American  Commission  of  1853  had  in 
a  number  of  cases,  e.  g.,  Laurent  and  Uhde,  considered  that  the  domicil 
in  Mexico  of  British  subjects  conferred  upon  them  iMexican  citizen- 
ship and  deprived  them  of  standing  as  British  subjects.^    This  view 

»  Belcher  (U.  S.)  i>.  Costa  Rica,  July  2,  1860,  Moore's  Arb.  2695;  Fretz  (U.  S.)  v. 
Colombia,  Feb.  10,  1864  (decision  of  Sir  Frederick  Bruce,  umpire,  Moore's  Arb. 
2560;  Miller  (U.  S.)  i^.  Mexico,  July  4,  1868,  iMd.  2706  (see  the  able  argument  of 
J.  Hubley  Ashton,  ibid.  2696-2706);  Eigendorff,  ibi'l.  2717  (temporary  absence); 
Bowen,  ibid.  2482;  Elliott,  ibid.  2481  and  cases  cited  2482  Jong  residence  and  pur- 
chase of  real  estate  in  Mexico  did  not  forfeit  American  citizenship  or  protection). 
See  also  supra,  p.  492;  "Carta  de  seguridad"  as  Chilean  involved  no  forfeiture  of 
American  citizenship;  Pradel  (U.  S.)  v.  Mexico,  ibid.  2543.  See  also  Robinson,  ibid. 
3410  (38  years'  residence  in  Mexico);  Wilkinson,  ibid.  2720;  Barclay  (Gt.  Brit.)  v. 
U.  S.,  May  8,  1871,  Moore's  Arb.  2721,  2727,  Hale's  Rep.  11-14;  Crutchett,  ibid., 
Hale's  Rep.  14;  Lynn  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2569-2570  (48 
years'  residence  in  Cuba,  acquisition  of  real  estate  and  marriage  there);  Machado 
(U.  S.)  V.  Spain,  ibid.  2567  (carta  de  domidlio  in  Cuba  held  not  to  deprive  claimant 
of  right  to  appear  before  commission  as  American  citizen);  Portuondo,  ibid.  2565 
(no  proof  of  intention  to  abandon  U.  S.  or  renounce  U.  S.  citizenship);  San  Pedro, 
ibkl.  2568;  Moniijo  (U.  S.)  v.  Colombia,  Aug.  17,  1874,  Moore's  Arb.  1421;  La  Fon- 
taine, 210,  212  (citizenship  not  lost  by  domicil  abroad  "in  cases  of  flagrant  violation 
of  justice,"  and  U.  S.  presentation  of  claim  held  proof  that  U.  S.  considered  claimants 
citizens).  See  also  Moore's  Dig.  II,  1072.  Perrenin  (France)  v.  U.  S.,  Jan.  15,  1880, 
Moore's  Ai-b.  2572-2574,  Boutwell's  Rep.  103  (notwithstanding  Art.  17  of  French 
Civil  Code  by  which  claimant  had  lost  his  French  citizenship  through  long  residence 
in  U.  S.  without  intention  to  return  to  France,  commission  admitted  him  as  French 
citizen,  inasmuch  as  he  had  not  acquired  U.  S.  citizenship.  Perhaps  the  decision 
is  explainable  on  the  ground  that  it  was  not  absolutely  certain  that  the  claimant 
was  without  intent  to  return  to  France).  See  Lebret  (France)  v.  U.  S.,  BoutweU's 
Rep.  105;  Faber  (Germany)  t'.  Venezuela,  Feb.  13,  1903,  Ralston,  630. 

2  In  Thompson  (U.  S.)  v.  Mexico,  Act  of  March  3,  1849,  Moore's  Arb.  2668,  resi- 
dence plus  the  acquisition  of  real  estate  which  involved  an  oath  of  allegiance  to 
Texas,  plus  expressed  intention  to  become  citizen  of  Mexico  deprived  claimant  of 
title  to  American  protection. 

'  Supra,  p.  562.    These  decisions,  however,  merely  held  that  belligerent  domicil 


700  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

was  supported  by  Mexico  in  a  number  of  cases  before  the  1868  Com- 
mission between  the  United  States  and  Mexico  to  bar  claims  of  Amer- 
ican citizens  domiciled  in  Mexico.  Wadsworth,  American  Commis- 
sioner, wrongly  interpreting  the  Koszta  case,  was  inclined  to  agree 
with  the  argument  that  domicil  fixed  the  national  character.*  Mr.  Ash- 
ton,  counsel  for  the  United  States,  however,  in  an  able  argument, 
drew  a  clear  distinction  between  nationality  and  domicil,^  after  which 
Commissioner  Wadsworth  appears  to  have  modified  his  views.  While 
Umpire  Lieber  held  that  foreign  domicil  could  not  denationalize,  unless 
so  provided  by  the  municipal  law  of  the  native  or  adopted  country,^ 
the  Commission  nevertheless  held  that  the  foreign  domicil  of  a  natu- 
ralized citizen  without  intent  to  return  to  the  United  States,*  or  de- 
parture and  establishment  of  domicil  abroad  after  the  filing  of  a  dec- 
laration of  intention  ^  involved  an  abandonment  of  all  claim  to  American 
protection.  After  a  number  of  decisions  in  which  domicil  plus  a  dec- 
claration  of  intention  were  held  to  confer  nationaUty,^  Sir  Edward 
Thornton,  as  second  Umpire  of  the  Commission,  put  an  end  to  the 
uncertain  and  unsatisfactory  decisions  on  this  matter  by  acting  upon 
the  principle  that  the  term  ''citizens"  in  the  convention  meant  citizen- 
ship according  to  the  law  of  the  contracting  parties,  and  declined 
to  recognize  a  declaration  of  intention  or  domicil,  singly  or  together, 
as  conferring  citizenship.^ 

The  British- American  Commission  of  1871,  dismissed  the  claim  of 
a  person  born  in  the  United  States,  who,  after  three  years'  residence 

conferred  the  nationality  of  the  place  of  domicil  for  determining  war  damages  and 
in  the  matter  of  trade. 

1  Schaben  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2696. 

2  Ibid.,  2696-2706.    Supra,  §  252. 

3  Miller  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2706. 

*  Perez  (U.  S.)  v.  Mexico,  ibid.  2718.  See  also  Halsey  (U.  S.)  v.  Mexico,  No.  449, 
not  in  Moore  (absence  from  U.  S.  for  26  years,  dictum),  Biencourt,  ibid.  2483 
{dictum). 

'  Kern  (U.  S.)  v.  Mexico,  ibid.  2719  and  cases  cited  2720. 

'  Jarr  and  Hurst  (U.  S.)  v.  Mexico,  ibid.  2707  et  seq.  But  it  was  not  held  to  confer 
nationahty  when  not  followed  by  naturalization.  Kern,  ibid.  2719.  See  also  supra, 
p.  575. 

^  Wilkinson  (U.  S.)  v.  Mexico,  ibid.  2720.  Zamacona,  Mexican  Commissioner, 
Bcems  also  to  have  acted  on  that  principle. 


CASE    OF   NATURALIZED    CITIZENS  701 

in  Great  Britain,  secured  British  naturalization,  leaving  immediately 
thereafter  for  the  United  States.^ 

The  Spanish-American  Claims  Commission  of  1871  held  that  de- 
parture from  the  United  States  without  any  intent  to  return  is  to  be 
construed  as  an  act  of  expatriation.^ 

The  French-American  Commission  under  the  protocol  of  January  15, 
1880,  held  in  a  number  of  cases  that  in  accordance  with  the  French 
Civil  Code  the  establishment  of  a  residence  in  the  United  States  with- 
out intent  to  return  to  France  forfeited  the  right  of  the  claimant  to 
appear  before  the  commission  as  a  citizen  of  France.^ 

§  330.  Case  of  Naturalized  Citizens. 

In  our  discussion  of  the  status  of  naturalized  citizens,^  it  has  been 
observed  that  citizenship  acquired  by  naturalization  may  be  more 
easily  lost  by  residence  abroad  than  citizenship  acquired  by  birth. 
The  tie  which  binds  the  naturalized  citizen  to  his  adopted  country 
has  always  been  recognized  as  more  easily  dissoluble  than  that  which 
binds  the  native  citizen  to  his  country.  While  in  the  case  of  native 
as  well  as  naturalized  citizens,  proof  of  residence  abroad  without  intent 
to  return  to  the  United  States  was  regarded,  prior  to  1907,  as  evidence 
of  expatriation  and  involved  a  forfeiture  of  the  right  of  American 
protection,  the  tests  and  criteria  b}'  which  the  absence  of  intent  to 
return  was  determined  were  much  more  strictly  construed  and  were 
more  unfavorable  to  expatriation  in  the  case  of  the  native  than  in 
that  of  the  naturalized  citizen.  Thus,  a  comparatively  short  period 
of  residence  abroad  on  the  part  of  a  naturalized  citizen  raised  a  pre- 
sumption of  abandonment  of  his  American  citizenship. 

1  Boyd  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  ibid.  2465.  But  the  principal  ground 
of  decision  appears  to  have  been  that  by  U.  S.  law  he  was  an  American  citizen,  and 
could  not  claim  internationally  against  the  United  States.    Supra,  p.  588. 

^  Lavigne,  No.  11,  and  Bister,  No.  21,  also  Marrot,  No.  114,  Moore's  Arb.  2565; 
Price  (U.  S.)  v.  Spain,  ibid.  2565  (naturalized  citizen  settled  abroad  permanently 
immediately  after  naturalization). 

3  Lebret  (France)  v.  U.  S.,  Moore's  Arb.  2492,  2505,  Boutwell's  Rep.  105  (dictum). 
Mrs.  Lebret  resided  45  years  in  U.  S.  Bouillotte,  ibid.  2562  (34  years'  residence  in 
U.  S.  and  permanent  e.stablishment  construed  as  intention  not  to  return;.  Deucatte, 
ibid.  2582  (declaration  of  intention  to  become  U.  S.  citizen  plus  long  residence  in 
U.  S.  held  to  forfeit  French  citizenship  under  French  law). 

*  Supra,  §241. 


702  THE    DIPLOMATIC    PROTfX:TION    OF    CITIZENS   ABROAD 

A  further  distinction  is  to  be  noted  between  naturalized  citizens 
returning  to  their  native  countries  and  those  proceeding  to  reside 
in  third  countries.  The  practice  of  the  United  States,  as  manifested 
in  its  statutes,  treaties  and  diplomatic  correspondence,  has  always 
recognized  that  the  presumption  of  expatriation  and  of  the  intent  to 
reside  abroad  permanently  is  much  stronger  in  the  case  of  a  return 
to  the  country  of  origin  than  in  the  case  of  residence  in  a  third  country.^ 
In  the  bill  from  which  the  Act  of  July  27,  1868  was  evolved,  one  sec- 
tion provided  that  continuous  residence  of  five  years  in  his  native 
country  on  the  part  of  a  naturalized  citizen  shall  be  construed  as  a 
permanent  domicil  there  and  a  forfeiture  of  the  right  to  protection.^ 
In  practically  all  of  the  naturalization  treaties  concluded  by  the  United 
States,  the  reestablishment  of  residence  in  the  native  country  with 
the  intent  not  to  return  is  equivalent  to  a  renunciation  of  American 
citizenship,  and  two  years'  residence  may  be  regarded  as  evidence 
of  such  intent.^ 

The  Act  of  March  2,  1907,  maintains  the  recognized  distinction 
between  naturalized  citizens  returning  to  their  native  or  to  a  third 
country  by  providing  that  "when  any  naturalized  citizen  shall  have 
resided  for  two  years  in  the  foreign  state  from  which  he  came,  or  for 
five  years  in  any  other  foreign  state,  it  shall  be  presumed  that  he  has 
ceased  to  be  an  American  citizen,  and  the  place  of  his  general  abode 
shall  be  deemed  his  place  of  residence  during  said  years."  ^  Unless 
the  presumption  of  renunciation  of  citizenship  is  rebutted  by  showing 
some  special  and  temporary  reason  for  the  change  of  residence,  the 
obligation  of  protection  by  the  United  States  is  deemed  to  be  ended. 
While  the  statute  may  be  open  to  the  criticism  that  it  enlarges  the  class 
of  persons  without  any  nationality,  inasmuch  as  it  withdraws  American 

>  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Wing,  Apr.  6,  1871,  Moore's  Dig.  Ill,  737; 
Mr.  Fish  to  Mr.  Washburne,  June  28,  1873,  For.  Rel.,  1873,  I,  260;  Mr.  Adee,  Act'g 
Sec'y  of  State,  to  Mr.  Little,  July  13,  1895,  For.  Rel.,  1895,  II,  937;  The  American 
I)assport,  138. 

2  Tlie  section  was  ultimately  dropped  from  the  bill.  Its  legislative  history  is  set 
forth  in  Sen.  Doc.  326,  59th  Cong.,  2nd  sess.,  24^25. 

'Supra,  §241. 

*  Section  2  of  the  Act.  This  provision  applies  as  well  to  the  natives  of  countriea 
in  which  the  U.  S.  exercises  extraterritoriahty.  The  statute  is  not  retroactive.  De- 
partment of  State  circular  instruction,  July  21,  1910,  For.  Rel.  1901,  1. 


METHODS    OF   OVERCOMING    PRESUMPTION    OF   EXPATRIATION       703 

citizenship  regardless  of  the  acquirement  of  any  other  citizenship/ 
it  has  nevertheless  been  of  great  aid  to  the  Department  of  State  in 
determining  when  protection  may  properly  be  withdrawn  from  nat- 
uralized citizens  residing  abroad. 

If  it  is  shown  that  the  residence  abroad,  whether  in  the  native  or 
in  a  third  country,  has,  at  any  time  within  five  years  of  the  date  of 
naturalization,  become  permanent,  American  protection  may  be  with- 
drawn, and  §  15  of  the  Act  of  June  29,  1906,  authorizes  the  Depart- 
ment of  Justice  to  bring  proceedings  for  the  cancellation  of  certifi- 
cates of  naturalization  upon  proof  that  the  naturalized  citizen  has 
established  a  permanent  residence  abroad. 

(b)    METHODS   OF  OVERCOMING   PRESUMPTION   OF  EXPATRIATION 

The  presumption  of  expatriation  resulting  from  residence  abroad 
may  be  overcome  by  showing  that  it  is  consistent  with  a  valid  claim 
to  American  citizenship,  and  the  Act  of  1907  provides  that  the  pre- 
sumption may  be  overcome  ''on  the  presentation  of  satisfactory  evi- 
dence to  a  diplomatic  or  consular  officer  of  the  United  States,  under 
such  rules  and  regulations  as  the  Department  of  State  may  prescribe." 
These  rules  and  regulations  are  contained  in  the  circular  instruction 
of  April  19,  1907  ^  and  subsequent  amendments  thereof.^  The  circu- 
lar instruction  states  that  "the  evidence  required  to  overcome  the 
presumption  must  be  of  the  specific  facts  and  circumstances"  which 
bring  the  alleged  citizen  under  one  of  the  heads  ^  exempting  him  from 
the  presumption  of  expatriation  "and  mere  assertions,  even  under 
oath,  that  any  of  the  enumerated  reasons  exist  will  not  be  accepted 

•  The  Pan-American  conference  at  Rio  Janeiro  in  1906,  in  its  convention  on  the 
status  of  naturalized  citizens  (ratified  by  the  U.  S.  Jan.  13,  1908,  Treaty  Series,  575) 
has  overcome  this  difficulty  by  providing  in  effect  that  the  two  years'  residence  in 
the  native  state  shall  be  construed,  subject  to  rebuttal,  as  a  recovery  of  original 
nationality  as  well  as  a  loss  of  adopted  citizenship.    {Supra,  p.  554.) 

^  Expati'iation,  For.  Rel.,  1907,  3.  See  also  circular,  Applications  for  Registra- 
tion, March  2,  1908. 

^  In  the  circular  of  July  26,  1910,  various  criteria  are  mentioned  for  overcoming 
the  presumption  of  expatriation  by  the  long  residence  abroad  of  a  native  citizen 
of  the  United  States.  Supra,  p.  696.  The  rules  now  mentioned,  while  laid  down 
primarily  with  reference  to  naturaUzed  citizens,  apply  equally  to  native  citizens. 

*  To  be  named  presently. 


704  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

as  sufficient."  In  the  circular  instruction  of  March  2,  1908,  concerning 
the  registration  of  citizens  in  consulates  abroad,  it  is  provided  that 
"whenever  an  applicant  against  whom  the  presumption  of  expatria- 
tion lies  submits  evidence  to  overcome  the  presumption,  this  evidence 
must  be  in  the  form  of  an  affidavit  .  .  .  ,"  a  form  for  which  was  pre- 
pared by  the  Department.  The  consular  officer  was  empowered,  in 
his  discretion,  to  require  corroborative  evidence,  if  deemed  necessary. 

§  331.  Interpretation  and  Construction  of  Departmental  Rules. 

1.  The  most  important  factor  which  will  serve  to  overcome  the 
presumption  of  expatriation  is  proof  that  the  residence  abroad  is  in 
representation  of  American  business  or  commerce,  and  that  the  citizen 
intends  eventually  to  return  to  the  United  States  permanently  to  reside.^ 
This  was  a  rule  of  the  Department  from  an  early  period,^  and  the  first 
rule  prescribed  by  the  Department  under  the  provisions  of  the  Act 
of  1907  was  that  the  party  could  overcome  the  presumption  by  showing 
that  he  resided  in  the  foreign  country  solely  as  a  representative  of  Amer- 
ican trade  and  commerce.^  Subsequently  the  rule  was  enlarged  to 
include  a  person  principally  engaged  as  a  representative  of  such  trade. ^ 
The  Solicitor's  Office  deemed  it  advisable  to  still  further  enlarge  the 
scope  of  this  rule,  with  respect  to  naturalized  citizens  residing  in  coun- 
tries contiguous  to  the  United  States,  to  include  those  engaged  in 
substantial  trade  or  commerce  between  the  United  States  and  such 
countries.  In  a  circular  instruction  issued  February  28,  1913,  the 
Department  prescribed  a  special  and  more  liberal  rule  in  the  case  of 
naturalized  citizens  residing  in  countries  near  to  the  United  States 
for  reasons  and  in  a  manner  not  inconsistent  with  the  retention  of 
American  citizenship  and  protection.    This  rule  reads: 

"  (Special  rule  a)  In  the  case  of  a  naturalized  American  citizen  residing 
in  Canada,  Mexico,  the  West  Indies,  Central  America  or  Panama,  the 
presumption  of  expatriation  may  be  overcome  upon  his  presenting  to  a 

'  Rule  (a)  of  the  Circular  instruction,  Expatriation,  April  19,  1907,  For.  Rel., 
1907,  4. 

^  See  instructions  printed  in  Moore's  Dig.  Ill,  §  476.  Van  Dyne,  Naturalization, 
355. 

'  See  rule  (a)  of  Circular  instruction,  April  19,  1907,  For.  Rel.,  1907,  4. 

*  Circular  of  May  14,  1908,  Amendment  to  rule  (a)  to  overcome  the  presumption 
of  expatriation. 


INTERPRETATION  AND  CONSTRUCTION  OF  DEPARTMENTAL  RULES   705 

diplomatic  or  consular  officer  satisfactory  evidence  that  he  is  employed 
by  a  legitimate  corporation  or  company  or  principally  engaged  in  any 
legitimate  concern,  which  is  effectively  owned  and  controlled  by  a  citizen 
or  citizens  of  the  United  States  and  materially  promotes  the  interests 
of  this  country,  and  that  he  intends  to  return  to  the  United  States  to 
reside." 

Settlement  in  business  by  a  naturalized  citizen  on  his  own  account 
and  not  as  a  representative  of  American  trade  and  commerce  leads 
to  the  belief  that  the  residence  abroad  is  permanent  and  will  not  serve 
to  overcome  the  presumption  of  expatriation. 

2.  The  rule  that  persons  who  take  up  an  apparently  permanent 
residence  abroad  are  not  entitled  to  diplomatic  protection,  does  not 
apply  to  persons  who  go  abroad  for  reasons  of  health  and  remain  abroad 
many  years,  hoping  to  come  back,  j^et  prevented  from  doing  so  by 
continuing  illness.^  This  rule  of  the  Department,  with  the  addition 
of  the  principle  that  residence  abroad  for  purposes  of  education  does 
not  effect  a  change  of  domicil,  was  adopted  as  the  second  rule  to  over- 
come the  presumption  of  expatriation  under  the  Act  of  1907.- 

3.  The  third  factor  which  may  overcome  the  presumption  is  "that 
some  unforeseen  and  controlling  exigency  beyond  his  power  to  fore- 
see has  prevented  his  carrying  out  a  bona  fide  intention  to  return  to 
the  United  States  within  the  time  limited  by  law,  and  that  it  is  his 
intention  to  return  and  reside  in  the  United  States  immediately  upon 
the  removal  of  the  preventing  cause."  ^ 

4.  In  view  of  the  opinion  of  the  Attorney  General  in  Gossin's  case  * 
to  the  effect  that  the  presumption  of  expatriation  by  two  years'  resi- 
dence in  the  native  country  was  created  to  relieve  the  Department 
from  protecting  persons  without  a  bona  fide  intention  to  reside  in  the 

*  Partial  paraphrase  by  Mr.  Moore  of  an  instruction  of  Sec'y  Bayard,  Oct.  12, 
18S7,  For.  Rel.,  1887,  1073,  Moore's  Dig.  Ill,  775.  See  also  Dupuy  v.  Wurtz,  53  N.  Y. 
556,  to  effect  that  residence  abroad  for  reasons  of  health  does  not  constitute  change 
of  domicil.  Beattie  i'.  Johnson,  10  CI.  and  Fin.  139  (dictum  of  Lord  Campbell); 
Burt's  case,  Moore's  Dig.  Ill,  §  477;  Strahlheim's  case,  Sec'y  Hay  to  Mr.  Hardy, 
May  20,  1902,  For.  Rel.,  1902,  975. 

*  The  clause  reads:  "That  his  residence  abroad  is  in  good  faith  for  reasons  of 
health  or  for  education,  and  that  he  intends  eventuall}^  to  return  to  the  United  States 
to  reside."    Rule  (b)  of  Circular  instruction  of  April  19,  1907,  For.  Rel.,  1907,  4. 

'  Rule  (c),  ibid. 

*  28  Op.  Atty.  Gen.  504.    Circular  instruction,  Dec.  22, 1910,  For.  Rel.,  1910,  3,  421. 


706  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

United  States,  and  is  overcome  by  an  actual  return  to  the  United 
States,  the  Department,  in  a  circular  instruction  of  November  18, 
1911,  permitted  the  naturalized  citizen  to  prove  "that  he  has  made 
definite  arrangements  to  return  immediately  to  the  United  States 
for  permanent  residence"  as  an  additional  method  of  overcoming  the 
presumption  of  expatriation.  In  this  connection,  it  is  prescribed, 
that  "the  disposition  of  his  property  and  effects,  the  arrangements 
in  regard  to  his  family,  if  he  has  one,  and  the  steps  taken  to  obtain 
passage  to  the  United  States  are  to  be  considered." 

It  will  be  recalled  that  during  the  administration  of  Secretary  Fish 
and  his  immediate  successors  the  payment  of  the  income  and  excise 
taxes  imposed  on  American  citizens  or  the  possession  of  property 
in  this  country  were  made  tests  in  determining  the  intent  to  retain 
American  citizenship.-^  The  question  having  been  raised  whether 
a  naturalized  citizen  against  whom  the  presumption  of  expatriation 
had  arisen  could  overcome  the  presumption  by  showing  that  he  had 
paid  or  was  ready  to  pay  the  income  tax  provided  for  by  the  Act  of 
October  3,  1913,  the  Department,  in  a  Circular  instruction  of  March  18, 
1914,  held  that  such  a  rule  had  not  been  prescribed,  but  added  that 
"if  a  person  against  whom  the  presumption  .  .  .  has  arisen  pre- 
sents .  .  .  evidence  that  he  has  paid  the  income  tax,  this  fact  will 
receive  due  consideration  in  connection  with  other  evidence  submitted 
to  overcome  the  presumption  of  expatriation  under  the  established 
rules,  and  particularly  with  regard  to  the  question  of  intent  to  return 
to  this  country  to  reside."  In  like  manner,  the  circular  instruction 
of  February  28,  1913  which  applies  only  to  Canada,  Central  America, 
Mexico,  Panama  and  the  West  Indies,  provides  that  if  a  person  against 
whom  the  presumption  has  arisen  shows  "that  he  has  retained  in 
good  faith  in  this  country  a  residential  house  or  other  property,  such 
fact,  although  not  of  itself  decisive,  should  be  given  due  weight  in 
determining  his  status,  and  particularly  the  question  of  his  intention 
of  returning  to  the  United  States  to  reside." 

§  332.  Rules  in  the  Case  of  Extraterritorial  Countries. 

The  peculiar  position  of  American  citizens  in  Turkey  and  China 

» See,  e.  g.,  Mr.  Fish,  Sec'y  of  State,  to  Mr.  McVeagh,  Dec.  13,  1870,  For.  Rel., 
1871,  pp.  887,888. 


RULES   IN   THE    CASE   OF   EXTRATERRITORIAL   COUNTRIES  707 

and  the  fact  that  so  many  American  missionaries  are  resident  in  those 
dominions,  brought  about  an  extension  of  the  rules  by  which  the  pre- 
sumption of  expatriation  by  residence  in  Turkey  or  China  could  be 
overcome. 

In  the  case  of  both  countries,  proof  that  the  citizen  resides  there 
as  a  regularly  appointed  missionary  of  a  recognized  American  church 
organization  is  sufficient  to  overcome  the  presumption  of  expatriation.* 

In  Turkey,  in  addition,  the  citizen  may  show  that  prior  to  March  2, 
1907,  he  had  established  himself  in  a  distinctively  American  community, 
whether  or  not  it  was  formally  recognized  as  such  by  the  Ottoman 
government,  that  he  is  still  residing  therein,  and  that  it  has  been  and 
still  is  impracticable  for  him  to  return  to  this  country  to  reside.^ 

In  China,  the  citizen  may  show  that  he  is  regularly  employed  in 
an  enterprise  having  for  its  object  the  development  or  advancement 
of  the  people  and  in  no  wise  inconsistent  with  American  interests, 
or  else  that  he  resides  in  China  in  the  employ  of  the  Chinese  Govern- 
ment in  a  capacity  not  inconsistent  with  his  American  citizenship, 
and  calculated  to  advance  legitimate  American  interests,  commer- 
cial or  otherwise.^  In  either  case,  he  must  show  that  he  intends  even- 
tually to  return  to  the  United  States  to  reside. 

It  will  have  been  observed  that  the  doctrine  of  implied  renunciation 
of  citizenship  by  continuous  residence  in  a  foreign  countrj'^  applies  only 
with  certain  limitations  to  countries  in  which  the  United  States  ex- 
ercises extraterritorial  rights. 

Naturalized  citizens,  natives  of  these  countries,  lose  their  citizen- 
ship by  returning  to  them  to  reside  permanently  and  a  residence  of 

1  Rule  (d)  of  Circular  instruction,  Dec.  11,  1907  (Turkey),  and  rule  (e)  of  Circular 
instruction  May  13,  1908  (China),  For.  Rel.,  1908,  1.  This  rule  in  fact  appUes  to 
missionaries  everywhere,  provided  they  do  not  intend  to  rehnquish  American  citizen- 
ship. Mr.  Everett  to  Mr.  Marsh,  Feb.  5,  1853,  2  Wharton,  360;  Mr.  Gresham  to 
Mr.  Runyon,  November  1,  1894,  American  passport,  209. 

'  Rule  (c)  of  circular  of  Dec.  11,  1907  as  supplemented  by  rule  (e)  embodied  in 
instruction  of  Mr.  Knox,  Sec'y  of  State,  to  W.  Stanley  HoUis,  American  Consul 
General  at  Beirut,  Dec.  16,  1912.  Rule  (e)  has  no  application  to  persons  who  were 
formerly  Turkish  subjects  or  to  those  who  settled  in  Turkey  after  March  2,  1907. 
This  question  of  residence  in  countries  in  which  the  U.S.  exercises  extraterritoriality 
will  be  further  discussed  presently. 

'  Rules  (c)  and  (d)  of  circular  instruction  of  May  13,  1908. 


708  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

two  years,  under  the  Act  of  1907,  creates  a  presumption  that  they 
have  ceased  to  be  American  citizens.  But  in  the  case  of  native  American 
citizens  or  naturalized  citizens  of  other  origin  than  that  of  the  countries 
in  question,  a  different  rule  prevails. 

In  a  series  of  instructions  issued  in  1887  and  1888,  while  Mr.  Bayard 
was  Secretary  of  State,  ^  the  Department  of  State  laid  down  the  rule 
that  citizens  of  the  United  States  not  natives  of  these  countries,  could 
not  by  mere  continuous  residence  there  lose  their  domicil  or  citizen- 
ship in  the  United  States,  since  they  could  not,  without  grave  peril 
to  their  safety,  become  subjects  of  the  native  government.^  Not- 
withstanding their  indefinitely  prolonged  residence,  protection  was 
extended  to  them  so  long  as  their  pursuits  were  legitimate  and  not 
prejudicial  to  the  friendly  relations  of  the  United  States  with  the 
government  in  whose  territory  they  were  residing.  In  a  recent  case,' 
the  United  States  court  for  China  held  that  notwithstanding  a  resi- 
dence of  forty-seven  years  in  China,  without  an  intention  to  return 
to  the  United  States, 

"There  is  nothing  in  the  theory  or  practical  operation  of  the  law 
of  extraterritoriality  inconsistent  with  or  repugnant  to  the  application 
of  the  American  law  of  domicil  to  American  citizens  residing  in  countries 
with  which  the  United  States  has  treaties  of  extraterritoriality."  * 

The  American  citizen,  with  the  exception  noted,  who  is  resident 
in  such  an  extraterritorial  country,  need  not,  as  a  rule,  in  order  to 
retain  his  American  citizenship,  domicil  and  right  to  protection,  man- 
ifest an  intention  to  return  to  the  United  States.     On  the  contrary, 

1  These  instructions  are  to  be  found  in  For.  Rel.,  1887,  1094,  and  1120-112.5  and 
in  Moore's  Dig.  Ill,  288.  See  also,  on  this  question.  Sen.  Doc.  326,  59th  Cong., 
2nd  sess.,  210-213,  and  Hinckley,  op.  cit.,  90-91.    See  also  Moore's  Dig.  Ill,  §  478. 

2  Circular  of  March  27,  1899,  last  paragraph. 

'  Young  J.  Allen  case,  1  A.  J.  I.  L.  (1907),  1029,  1039. 

^  .Judge  Wilfley  held  that  Dr.  Allen  had  acquired  an  extraterritorial  domicil  in 
China,  and  that  the  law  which  Congress  has  extended  to  Americans  in  China,  namely, 
the  common  law,  applied  in  the  distribution  of  his  estate,  and  not  the  law  of  the 
state  (Georgia)  in  which  he  had  his  domicil  of  origin.  The  decision  appears  to  have 
been  based  largely  upon  Sir  Francis  Piggott's  reasoning  in  his  work  on  Exterritoriality 
(Rev.  od.,  1907),  217,  225,  230-233,  and  upon  the  views  of  Hall,  Foreign  jurisdiction, 
184-180.  The  exception  from  the  general  rule  is  based  upon  the  theory  that  the 
person  has  maintained  his  identity  as  an  American  citizen,  and  is  connected  with  an 
American  community,  recognized  as  such  by  the  local  government. 


HERITABILITY  OF  CITIZENSHIP  IN  EXTRATERRITORIAL  COMMUNITIES      709 

the  ruling  of  the  Department  of  State  expressly  contemplates  a  per- 
manent residence  in  the  extraterritorial  country.^ 

The  most  important  matter  connected  with  permanent  residence 
in  American  communities  in  countries  in  which  the  United  States 
exercises  extraterritoriality  was  that,  up  to  1914,  American  citizen- 
ship was  inheritable  from  generation  to  generation,  so  long  as  the 
descendants  of  the  American  citizen  formed  part  of  such  a  distinctive 
American  community,  regardless  of  their  intention  to  assume  a  resi- 
dence in  the  United  States.  This  important  exception  to  §  1993  of 
the  Revised  Statutes,  which  provides  that  "the  rights  of  citizenship 
shall  not  descend  to  children  whose  fathers  never  resided  in  the  United 
States,"  was  based  upon  the  ground  that  "such  descendants  are  to 
be  regarded,  through  their  inherited  extraterritorial  rights  ...  as 
born  and  continuing  in  the  jurisdiction  of  the  United  States."  -  But 
the  exception  to  §  1993  was  not  extended  to  the  descendants  of  natural- 
ized foreigners  who  return  to  the  country  of  their  origin,  although 
their  country  -may  be  one  in  which  the  United  States  exercises  extra- 
territoriality.^ 

§  333.  Recent  Departmental  Ruling  Conceming  Heritability  of  Citi- 
zenship in  Extraterritorial  American  Communities. 

It  has  recently  been  considered  by  the  Department  of  State  that 
in  view  of  certain  decisions  of  the  Supreme  Court  limiting  the  term 
"United  States"  to  the  continental  part  of  the  United  States,'*  and 
a  ruling  that  residence  in  the  Philippines  is  not  counted  as  residence 

*  The  ruling  covered  American  communities  in  Txirkey  only,  but  probably  extends 
to  other  extraterritorial  countries.  It  reads:  "Persons  who  are  members  in  Turkey 
of  a  community  of  citizens  of  the  United  States  of  the  character  above  described  do 
not  lose  their  domicil  of  origin  no  matter  how  long  they  remain  in  Turkey,  provided 
that  they  remain  as  citizens  of  the  United  States,  availing  themselves  of  the  extra- 
territorial rights  given  by  Turkey  to  such  communities,  and  not  merging  themselves 
in  any  way  in  Turkish  domicil  or  nationality."  For.  Rel.,  1887,  1125.  See  as  to 
presumption  of  expatriation  on  the  part  of  native  American  citizens,  Circular  in- 
struction of  July  26,  1910,  supra,  p.  696. 

-  The  ruling  was  made  in  a  case  in  Turkey,  For.  Rel.,  1887,  1125.  Circular  instruc- 
tion, March  27,  1899. 

'  Mr.  Rives.  Asst.  Sec'y  of  State,  to  Mr,  Emmet,  Jan.  11,  1888,  Moore'a  Dig.  Ill, 
288. 

*  Downes  v.  BidweU  (1901),  182  U.  S.  244. 


710  THE   DIPLOMATIC   PROTECTION   OF   CITIZENS   ABROAD 

in  the  United  States  for  purposes  of  naturalization,  the  instructions 
of  1887  which  held  residence  in  American  communities  in  Turkey 
to  be  a  perpetual  title  to  American  citizenship,  must  be  overruled, 
for  they  were  deemed  to  rest  upon  the  fiction  that  persons  born  to 
American  citizens  residing  in  American  communities  in  Turkey  are 
born  to  persons  residing  within  the  territory  and  jurisdiction  of  the 
United  States.^  This  new  ruling  of  the  Department  does  away  with 
the  exception,  made  since  1887,  to  §  1993  of  the  Revised  Statutes, 
and  makes  that  section  of  universal  application. 

BANISHMENT 

§  334.  Now  Practically  Abandoned. 

In  former  times,  exile  or  banishment  was  frequently  practiced. 
It  is  now  considered  inconsistent  with  the  nature  of  a  sovereign  state 
and  opposed  to  the  basis  of  the  modern  political  system,  inasmuch 
as  this  form  of  penalty  depends  for  its  execution  upon  the  goodwill 
of  neighboring  states.  Moreover,  it  may  under  certain  circumstances 
be  incapable  of  execution,  for  the  original  home  state  is  bound  to  re- 
ceive back  its  citizens  if  no  foreign  state  will  accept  them,  on  account 
of  indigence,  disease,  or  other  cause.  This  is  one  of  the  distinguish- 
ing marks  of  the  bond  of  nationality,  as  has  been  observed.  For 
this  same  reason,  several  leading  publicists  are  opposed  to  the  imposi- 
tion of  denationalization  as  a  penalty  for  long-continued  residence 
abroad,  for  entering  foreign  military  service,  for  the  ownership  of 
slaves  and  for  other  acts,  when  no  new  nationality  is  acquired  by  the 
individual.  The  loss  of  diplomatic  protection  they  consider  to  be  a 
more  logical  penalty.^ 

It  must  be  remembered  that  the  penalty  of  loss  of  citizenship  pro- 

'  Special  Consular  Inst.  340,  July  27,  1914,  Citizenship  of  children  born  of  American 
fathers  who  have  never  resided  in  the  United  States.  Includinff  Opinion  of  the 
Solicitor,  June  22,  1914.  Ruling  made  on  the  application  for  a  passport  of  Ben  Zion 
Lihenthal,  grandson  of  a  naturalized  citizen  of  the  U.  S.  and  resident,  as  was  his 
father  (son  of  the  naturalized  citizen)  in  a  Zionist  community  in  Turkey. 

="  Bar,  §  55;  Cogordan,  op.  at.,  2nd  ed.,  285-287;  Stoerk  in  R.  G.  D.  I.  P.,  1895,  28:-; 
Bluntschli,  art.  372.  See  Dr.  Sturm  in  17  Deutsche  Juristen-Zeitung,  Feb.  15,  1912, 
col.  278. 


ACTS   WHICH   DO   NOT  EFFECT  EXPATRIATION  711 

vided  for  in  the  penal  codes  of  many  of  the  Latin-American  states  has 
reference  merely  to  the  loss  of  civic  rights. 

ACTS    WHICH    DO    NOT   EFFECT   EXPATRIATION 

§  335.  Foreign  Military  Service. 

It  has  been  held  almost  uniformly  that  entrance  into  the  military 
service  of  a  foreign  government,  unless  accompanied  by  an  unqualified 
oath  of  allegiance,  does  not  effect  expatriation.^  Certain  decisions 
of  the  domestic  commission  of  1849  which  penalized  service  in  Mexico 
with  a  loss  of  American  citizenship  must  be  understood  at  most  in 
the  sense  of  a  temporary  disqualification  of  any  claim  to  American 
citizenship,  or  a  loss  of  diplomatic  protection,  during  the  continuance 
of  the  service."  In  the  case  of  a  citizen  who  became  engaged  in  service 
against  a  country  with  which  the  United  States  was  at  peace.  Secre- 
tary of  State  Jefferson  reasoned  that  the  commission  of  an  illegal  act 
could  not  operate  as  a  legal  method  of  expatriation.^  When  military 
service  to  a  foreign  state  involves  naturalization — which  is  not  often 
the  case — it  has  been  held  that  expatriation  is  thereby  effected.* 

Although,  under  ordinary  circumstances,  military  service  abroad 
does  not  involve  expatriation,^  it  has  been  generally  held  that  unneutral 
military  service  forfeits  diplomatic  protection.®     If  American  citizens 

^Santissima  Trinidad  (1821),  1  Brock.  478;  7  ^\^leat.  283;  Mr.  Hunter,  Ass't 
Sec'y  of  State,  to  Mr.  Green,  Sept.  10,  1880,  Moore's  Dig.  Ill,  732;  Mr.  Bayard, 
Sec'y  of  State,  to  Mr.  Whitehouse,  Nov.  14,  1888,  ibid.  734;  Mr.  Rives,  Ass't  Sec'y 
of  State,  to  Mr.  Putnam,  Jan.  5,  1888,  For.  Rel.,  1895,  II,  850;  Mr.  Knox,  Sec'y  of 
State,  to  Mr.  Moffat,  Nov.  21,  1909,  For.  Rel.,  1909,  451.  See  also  infra,  §  364. 
For  a  niling  to  the  contrarj',  see  Mr.  F.  W.  Seward,  Ass't  Sec'y  of  State,  to  Mr. 
Thomas.  :\Iay  5,  1877,  Moore's  Dig.  Ill,  733. 

^  Infra,  p.  772. 

'  From  report  of  Mr.  Webster  in  Thrasher's  case,  quoted  in  Moore's  Dig.  Ill,  731. 
Bar  considei*s  as  absurd  the  former  rule  of  German  law  that  by  entering  foreign  mili- 
tary service  a  German  lost  his  nationality.    Section  59. 

■•  Kircher  v.  Murray,  54  Fed.  617;  Mr.  F.  W.  Seward,  Act'g  Sec'y  of  State,  to 
Mr.  Foster,  Aug.  13,  1879,  For.  Rel.,  1879,  824;  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Tur- 
ley,  April  6,  1899,  Moore's  Dig.  Ill,  735;  Martin  (U.  S.)  v.  Mexico,  July  4,  1868. 
Moore's  Arb.  2467  and  cases  cited  (award  by  Palacio,  Mexican  commissioner). 

*  Unauthorized  military  service  abroad  forfeits  citizenship  in  certain  countriea. 
Supra,  p.  687. 

*  Infra,  §364. 


712  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

are  taken  prisoners  of  war,  however,  the  government  has  deemed 
it  as  still  its  duty  to  see  that  they  are  treated  according  to  the  rules 
of  war.^  If  not  engaged  in  unneutral  service  even  their  right  to  dip- 
lomatic protection  is  not  affected.^ 

By  the  law  of  certain  countries,^  the  acceptance  of  military  service 
abroad  does  not  involve  a  loss  of  nationality,  unless  the  subject  dis- 
obeys a  request  to  withdraw  from  the  foreign  service  within  a  fixed 
time. 

§  336.  Other  Acts. 

Among  other  acts  which  have  been  held  not  to  effect  expatriation 
are  the  imposition  of  naturalization  by  a  foreign  government  against 
the  will  of  the  citizen,*  the  acceptance  of  minor  political  offices  from 
foreign  governments  ^  or  the  exercise  of  political  rights,  such  as  voting,^ 
under  circumstances  not  indicating  any  intention  to  renounce  original 
allegiance,  and  the  acceptance  of  titles  of  nobility  from  foreign  govern- 
ments/ The  distinctions  attendant  upon  long  continued  residence 
abroad  in  its  effect  upon  expatriation  have  been  fully  discussed.^ 

1  Infra,  p.  768. 

2  Didum  of  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Wliitehouse,  Nov.  14,  1888,  Moore's 
Dig.  Ill,  734;  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  454. 

^  E.  g.,  Germany,  Italy  and  Austria-Hungary.    Supra,  p.  687. 

*  Supra,  p.  535. 

*  Office  of  Swiss  vice-consul  at  New  York,  Mr.  Peshine  Smith,  Solicitor,  to  Mr. 
Louis  Boerlin,  Oct.  12,  1869,  Moore's  Dig.  Ill,  716;  Mr.  Rives,  Ass't  Sec'y  of  State, 
to  Mr.  Sewall,  Jan.  6,  1888,  ibid.  718.  See  also  infra,  §  380.  But  see  Medina's  case, 
Mr.  Davis,  Ass't  Sec'y  of  State,  to  Mr.  Weile,  April  18,  1870,  ibid.  737.  See  next 
footnote. 

« Calais  v.  Marshfield  (1849),  30  Maine,  515;  State  v.  Adams  (1876),  45  Iowa,  99; 
Ware  v.  Wisner  (1883),  50  Fed.  310. 

7  Mr.  Bacon,  Act'g  Sec'y  of  State,  to  Mr.  Bryan,  May  16,  1907,  For.  Rel.,  1907, 
II,  957.  Mr.  Bacon  stated:  "The  acceptance  of  a  title  from  a  foreign  government 
is  so  opposed  to  the  spirit  of  our  institutions  and  laws  that,  although  not  specifically 
forbidden,  and  therefore  not  sufficient  in  itself  to  work  expatriation,  it  is  a  circum- 
stance to  be  considered  in  determining  whether  or  not  an  American  citizen  has 
expatriated  himself." 

*  Supra,  §  326  el  seq. 


CHAPTER  m 

FORFEITURE  OF  PROTECTION  BY  ACT  OF  CITIZEN— Con- 
tinued.    CENSURABLE  CONDUCT  OF  THE  CLAIMANT 

§  337.  General  Principles.    Topical  Division. 

It  is  often  stated  that  allegiance  and  protection  are  correlative. 
There  is  this  difference,  however,  that  while  the  duty  of  fidelity  in- 
herent in  allegiance  is  absolute,  the  duty  of  the  state  to  protect  is 
conditional  on  various  circumstances,  the  modifying  effect  of  which 
it  is  within  the  state's  discretion  to  estimate.  One  of  the  most  frequent 
reasons  for  a  denial,  or  at  least,  a  limitation  in  the  extent  of  the  state's 
diplomatic  protection  is  the  inequitable  or  censurable  conduct  of 
the  citizen. 

It  is  an  established  maxim  of  all  law,  municipal  and  international, 
that  no  one  can  profit  by  his  own  wrong,  and  that  a  plaintiff  or  a  claim- 
ant must  come  into  court  with  clean  hands.  We  shall,  therefore, 
in  this  chapter  discuss  those  cases  in  which  foreign  offices  or  interna- 
tional commissions  have  refused,  or  at  least,  limited  the  protection 
ordinarily  extended  to  injured  citizens  because  the  acts  of  the  claim- 
ant himself  have  made  such  protection  unjustifiable  either  in  whole 
or  in  part.  The  many  cases  of  this  character  which  have  occurred 
in  the  diplomatic  history  of  the  United  States  and  of  other  nations 
during  the  last  hundred  years  maj''  be  classified  under  certain  definite 
heads,  under  which  we  shall  undertake  to  treat  the  subject:  first,  cen- 
surable conduct  generally;  second,  concealment  of  citizenship;  third, 
fraud  in  the  presentation  or  merits  of  the  claim;  fourth,  the  evasion 
ot  national  duties  and  particularly  military  service;  fifth,  the  breach 
by  the  citizen  abroad  of  (a)  the  local  law;  (b)  international  law, — as- 
suming, for  the  purpose,  that  international  law  imposes  duties  upon 
citizens — ;  and  (c)  his  national  law.  Because  of  the  great  variety 
of  cases  occurring  under  heading  five  (b)  and  (c),  these  heads  have 

713 


714  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

been  further  subdivided  into  numerous  classes  of  censurable  or  rep- 
rehensible conduct,  which,  while  actually  a  breach  of  national  or  of 
international  law,  nevertheless  warrant  separate  treatment  by  them- 
selves. We  will  therefore  discuss,  under  a  sixth  head,  trading  with 
the  enemy  or  prohibited  or  unlawful  trading,  and  under  head  seventh, 
unneutral  conduct  or  unfriendly  act,  which  will  include  (a)  privateering; 
(b)  unlawful  expeditions;  (c)  unneutral  service,  particularly  military 
service;  (d)  unneutral  conduct  in  act  and  ''aid  and  comfort"  to  the  bel- 
ligerents. 

INEQUITABLE   CONDUCT   GENERALLY 

§  338.  Ex  Dole  Male  Non  Oritur  Actio. 

The  general  maxim  ex  dolo  malo  non  oritur  actio  applies  especially 
to  most  of  the  limitations  on  diplomatic  protection  discussed  in  this 
chapter.  No  court  will  lend  its  aid  to  a  man  who  founds  his  cause 
of  action  on  an  immoral  or  illegal  act.  Numerous  cases  have  arisen 
where  the  injury  to  the  claimant  resulted  from  his  own  negligence. 
The  local  government  therefore  was  either  absolved  from  all  responsi- 
bility or  its  liability  greatly  reduced,  for,  as  will  appear,  the  doctrine 
of  comparative  negligence  has  been  applied  in  international  law  and 
practice.^ 

Thus,  in  the  Davis  case  against  Venezuela,-  a  Venezuelan  custom- 
house oflficial  made  a  wrongful  delivery  of  the  claimant's  goods  to 
persons  other  than  the  rightful  consignee.  Yet  the  Umpire  (Plumley), 
in  dismissing  the  claim,  held  that  the  wrong  delivery  was  only  made 

'  In  the  municipal  law  of  most  countries  the  doctrine  of  comparative  negligence 
is  fully  accepted;  not  so,  however,  in  the  United  States  where  there  is  much  opposi- 
tion to  fixing  degrees  of  negligence  (18  Harvard  Law  Review,  536-537). 

-  Davis  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  405.  For  other  claims 
which  were  disallowed  on  the  ground  that  the  damage  was  due  whoUy  or  partly 
to  the  claimant's  own  fault  or  negligence,  see  The  Elizabeth  (Gt.  Brit.)  v.  U.  S., 
Nov.  19,  1794,  Moore's  Arb.  4001;  The  Fame,  ibid.  3100  (laches  in  taking  appeal 
from  decision  of  prize  court);  Heidsieck  (France)  v.  U.  S.,  Jan.  15,  1880,  ibid.  3313, 
3310;  Selkirk  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  3130;  Farnam  v.  Peruvian  Indem- 
nity, Mar.  17,  1841,  ibid.  4598  (certain  expenses,  caused  by  claimant's  own  action, 
disallowed);  Schooner  Henry  Crosby  v.  Dominican  Rep.,  For.  Rel.,  1895,  I,  215-233; 
The  Vixen  (Gt.  Brit.)  v.  Russia,  26  St.  Paj).  2-60;  Queen  of  the  Seas  and  Deerhound 
V.  Spain,  65  St.  Pap.  508-527;  see  also  2  Wharton,  §  243,  p.  700. 


DISLOYALTY    AND    UNNEUTRAL   CONDUCT  715 

possible  by  the  gross  negligence  of  the  claimant,  the  consignor,  in 
failing  to  appoint  a  resident  agent  at  Venezuela  to  receive  goods. 

The  Court  of  Claims  has  had  occasion  to  apply  this  principle  in 
several  cases.  Thus,  in  the  case  of  Illinois  Central  Railway  Co.  v. 
The  United  States,^  the  court  held  that  there  can  be  no  implied  con- 
tract to  indemnify  a  claimant  against  a  loss  caused  by  his  own  neg- 
lect of  duty.  Nor  will  a  special  act  of  Congress  relieving  contractors 
from  liability'  to  the  government,  relieve  them  from  the  legal  conse- 
quences of  their  own  negligence  when  seeking  to  recover  damages 
from  the  government.^ 

§  339.  Disloyalty  and  Unneutral  Conduct. 

The  Court  of  Claims  in  construing  statutes  giving  that  court  juris- 
diction of  certain  classes  of  claims  against  the  United  States,  has  had 
occasion  to  interpret  the  effect  of  certain  conditions  or  disqualifying 
conduct  intended  to  bar  the  claimant's  right  to  relief.  Under  the 
Abandoned  or  Captured  Property  Act  of  March  12,  1863  (12  Stat.  L. 
820),  the  disloyalty  of  the  claimant  to  the  United  States  during  the 
Civil  War  deprived  him  of  the  benefit  of  claiming  under  the  Act.  Sim- 
ilarly, under  the  fourth  section  of  the  Act  of  March  3,  1883,  known 
as  the  Bowman  Act,  a  claim  for  militarj^  supplies  taken  by  or  furnished 
to  the  United  States  during  the  Civil  War  required  proof  of  the  claim- 
ant's loyalty.  It  was  held  that  mere  residence  in  the  insurrectionary  ter- 
ritory raised  the  presumption  of  disloyalty  which  the  claimant  must  over- 
come in  the  preliminary  inquiry  prescribed  by  the  Bowman  Act ;  '  and 
that  a  person  who  voted  for  secession  only  because  he  thought  the  safety 
of  himself  and  family  required  it,  could  not  be  held  to  have  been  loyal.'* 

The  disloyalty  or  unneutral  acts  of  one  partner  in  a  firm  without 
affirmative  evidence  that  the  other  partner  remained  loyal  created 
a  presumption  that  the  disloyalty  of  the  one  was  imputable  to  the 
other;  ^  and  the  general  rule  followed  is  that  in  partnership  transac- 

1  Illinois  Central  Railway  Co.  v.  The  United  States,  16  Ct.  CI.  312. 
-  Henegan  v.  The  United  States,  17  Ct.  CI.  273. 
'  Nance  i'.  The  United  States,  23  Ct.  CI.  463. 
*  Fletcher  v.  The  United  States,  32  Ct.  CI.  36. 

s  McStea  (Gt.  Brit.)  f).  The  United  States,  Second  Alabama  Claims  Court,  Act  ol 
June  5,  1882,  Moore's  Arb.  2381. 


716  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    AUROAD 

tions,  the  disloyalty  or  unneutral  conduct  of  one  of  the  partners  binds 
the  firm/  though  international  courts  have  shown  a  willingness  to 
admit  evidence  that  the  transaction  was  not  a  partnership  enterprise 
and  that  the  innocent  partner  was  not  responsible  for  the  disloyal 
acts  of  the  other  partner. - 

In  certain  cases  where  persons  in  rebellion  against  the  United  States, 
being  excluded  from  the  right  to  sue  under  the  Act  of  March  12,  1863, 
based  their  right  to  recover  the  value  of  cotton  captured,  the  proceeds 
of  which  were  turned  into  the  Treasury,  on  an  implied  contract,  al- 
leging that  they  were  not  able  to  sue  under  the  Act  because  they  were 
not  amnestied  until  after  the  expiration  of  the  time  allowed  for  suit, 
the  court  held  that  it  was  the  claimant's  own  wrong  if  he  was  a  rebel 
and  his  negligence  that  he  had  not  been  sooner  amnestied.^  Nor  did 
the  pardon  and  amnesty  granted  by  President  Johnson  on  December  25, 
1868  (15  Stat.  L.  711),  to  those  who  had  adhered  to  the  RebeUion, 
vv'ith  the  restoration  of  rights,  privileges,  and  immunities  under  the 
Constitution,  operate  retroactively  to  refund  to  a  claimant  the  value 
of  property  seized  while  he  was  a  rebel.* 

The  fact  of  having  served  the  Rebellion  was  not  considered  by 
Secretary  of  State  Fish  as  sufficient  reason  for  withdrawing  protection 
from  United  States  citizens,  in  Egypt  after  the  termination  of  the 
RebeUion,  who  had  so  served.^ 

§  340.  Effect  of  Censurable  Conduct  in  Certain  Cases. 

Several  cases  under  the  Abandoned  or  Captured  Property  Act  re- 
lated to  captures  at  sea  and  brought  up  interesting  points  of  law  in 
connection  with  the  construction  placed  upon  various  attempts  to 
avoid  capture.  The  abuse  by  the  claimant  of  a  certain  concession 
was  held  to  justify  its  revocation  by  the  government  and  to  estop 

'  Hargous  (U.  S.)  v.  Mexico,  Domestic  Commission  under  Act  of  March  3,  1849, 
Moore's  Arb.  1280-1283;  Schreiner  v.  U.  S.,  6  Ct.  CI.  360. 

2  Levois  &  Co.  v.  U.  S.,  Act  of  .June  23,  1874,  Moore's  Arb.  2358, 

'  Haycraft  v.  The  United  States,  8  Ct.  CI.  483. 

*  Knote  V.  The  United  States,  95  U.  S.  149. 

'  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Butler,  Oct.  5,  1871,  Moore's  Dig.  VI,  621. 
As  these  persons  had,  however,  by  contract  with  the  Khedive  renounced  the  right 
to  appeal  to  their  own  Government,  Mr.  Fish  then  stated  that  there  would  be  "  no 
ground  of  interference." 


EFFECT  OF  CENSURABLE  CONDUCT  IN  CERTAIN  CASES      717 

the  claimant  from  demanding  compensation.^  If  the  claimant  has 
by  his  own  acts  provoked  the  injury,  the  right  to  protection  will  be 
either  forfeited  or  seriously  weakened.  So  where  he  incites  a  mob 
he  must  bear  the  consequences  of  an  injury  incurred.  This  rule  was 
laid  down  by  the  Institute  of  International  Law.^  Resistance  to  the 
police  authorities  estops  the  claimant  from  demanding  compensa- 
tion for  the  resulting  injury,  unless  the  injury  is  manifestly  dispropor- 
tioned  to  his  own  offense.^ 

In  cases  where  a  claim  is  based  upon  services  to  a  foreign  government 
arising  out  of  acts  against  public  policy,  diplomatic  protection  will 
be  refused.  Thus,  claims  founded  upon  services  for  lobbying  before 
Congress  in  behalf  of  claims  of  foreign  governments  or  for  the  revision 
of  awards  have  been  emphatically  denied  support.* 

Ralston,  umpire  in  the  Poggioli  case,^  held  that  even  though  claim- 
ants may  have  been  usurers  and  have  aroused  their  neighbors  by  their 
sharp  bargainings  and  heartless  collection  of  their  debts,  that  even 
though  all  their  injuries  were  to  be  attributed  to  personal  animosities, 
"these  excuses  [were]  not,  however,  of  a  character  to  affect  liability 
if  it  otherwise  existed." 

The  Pelletier  claim  against  Haiti,  in  which  the  claimant  was  shown 
to  have  been  guilty  of  slave  trading  in  Haitian  waters,  gave  Secretary 
of  State  Bayard  occasion  to  express  an  emphatic  opinion  on  the  general 
question  of  turpitude  of  the  cause  of  action  as  barring  the  claim: 

"Even  were  we  to  concede  that  these  outrages  in  Haitian  waters 
were  not  'v\'ithin  Haitian  jurisdiction,  I  do  now  affirm  that  the  claim  of 
Pelletier  against  Haiti  .  .  .  must  be  dropped,  and  dropped  peremptorily 
and  immediately  by  the  .  .  .  United  States.  .  .  .  Ex  turpi  causa  non 
oritur  actio:  by  innumerable  rulings  under  Roman  common  law,  as  held 

>  Paquet  (Belgium)  v.  Venezuela,  March  7,  1903,  Ralston,  270. 

2  17  Annuaire  (1898),  96  et  seq.;  18  ibid.  254  et  seq.;  Despagnet,  Cours  de  droit 
international  public,  Paris,  1910,  4th  ed.,  p.  472.  Oppenheim  (2nd  ed.,  I,  397)  stated 
that  his  government  in  deciding  whether  to  extend  protection  must  consider 
"whether  his  behaviour  has  been  provocative  or  not." 

3  Baker  (U.  S.)  v.  Peru,  Jan.  12,  18b3,  Moore's  Arb.  1625;  Brand  (U.  S.)  v.  Peru, 
Moore's  Arb.  1625. 

*  Jewett  claim  v.  Brazil;  Monitor  claims  v.  Japan;  Matchett  claim  v.  Venezuela, 
Moore's  Dig.  VI,  §  974. 

» Poggioh  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  866. 


718  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

by  nations  holding  Latin  traditions,  and  under  the  common  law  as  held 
in  England  and  the  United  States,  has  this  principle  been  applied."  ' 

Numerous  claims  have  been  disallowed  on  the  equitable  maxim 
that  a  claimant  must  come  into  court  with  clean  hands,  thus  barring 
recovery  by  a  claimant  who  was  himself  a  wrongdoer.^ 

In  some  of  the  claims  arising  out  of  the  Zerman  filibustering  expedi- 
tion against  Mexico  in  1857  {infra,  p.  762)  the  criterion  of  guilty  knowl- 
edge of  the  unlawful  character  of  the  expedition  was  applied  by  Thorn- 
ton, umpire  of  the  Mixed  Commission  of  July  4,  1868,  in  determining 
the  claimants'  right  to  an  award.  Thus  where  the  claimant  knowingly 
took  part  in  the  expedition  his  claim  was  denied,^  or  at  least,  Thornton 
said,  the  "lowest  possible"  amount  of  damages  should  be  allowed 
for  the  unnecessary  and  illegal  delay  in  proceeding  with  his  trial  and 
the  undoubtedly  harsh  treatment  to  which  he  was  exposed.  Similarly, 
ignorance  of  the  unlawful  character  of  the  expedition  was  interpreted 
as  a  lack  of  prudence,  but  little  short  of  guilty  knowledge.*  A  lack 
of  discretion  in  chartering  his  vessel  to  the  expedition  likewise  reduced 
the  amount  of  damage  awarded  to  a  captain  for  the  confiscation  of 
the  vessel  and  the  harsh  treatment  and  illegal  delay  in  trial, ^  although 
the  owner  of  the  chartered  vessel,  having  no  knowledge  of  the  illegal 
character  of  the  expedition,  was  held  to  be  entitled  to  the  full  value 
of  the  vessel,  the  Mexican  authorities  having  failed  to  release  her  within 
a  reasonable  time.^ 

§  341.  Censurable  Conduct  Extraneous  to  Injury  or  Claim. 

Censurable  conduct  extraneous  to  the  particular  act  out  of  which 
the  claim  arose  has  sometimes  induced  the  government  to  decline 
its  protection.  Thus  a  fugitive  from  justice,  Mears,  who  had  partici- 
pated in  the  fraud  perpetrated  by  Gardiner  and  others  in  the  Mexican 

1  For.  Rel.,  1887,  pp.  606-607;  see  the  award  in  Moore's  Arb.  1749,  against  which, 
in  response  to  a  Senate  Resolution,  Mr.  Bayard  presented  an  adverse  report. 

2  Clark  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  2749;  Medea  and  Good 
Return  (U.  S.)  v.  Ecuador,  Nov.  25,  1862,  ibid.  2739. 

'  Craig,  Ballentine,  McCurdy  (U.  S.)  v.  Mex.,  July  4,  1868,  Moore's  Arb.  2768-9. 

'  Dolan  (U.  S.)  v.  Mex.,  July  4,  1868,  Moore's  Arb.  2769. 

»  Rebecca  Adams,  Andrews  (U.  S.)  v.  Mex.,  July  4,  1868,  Moore's  Arb.  2769-71. 

Ubid 


CENSURABLE    CONDUCT   EXTRANEOUS   TO    INJURY    OR   CLAIM        719 

Claims  Commission  {infra,  p.  726)  was  held  not  to  be  entitled  to  the 
protection  of  the  United  States  because  of  his  alleged  maltreatment 
in  Mexico.    Mr.  Marcy  on  that  occasion  said : 

"It  is  not  over  criminals  or  fugitives  from  justice  in  foreign  coun- 
tries. .  .  .  that  this  government  is  bound  to  throw  the  shield  of  its 
protection."  ' 

However  the  criminal  conviction  of  a  citizen  in  a  foreign  country 
has  been  held  in  itself  not  to  be  sufficient  cause  for  refusing  a  passport.^ 
It  has  already  been  observed  that  a  passport  is  refused  to  an  Amer- 
ican citizen  if  it  is  believed  that  the  passport  will  be  put  to  an  improper 
or  unlawful  use,  but  mere  censurable  or  even  immoral  conduct  has 
on  certain  occasions  not  been  deemed  a  sufficient  cause  for  the  refusal 
of  a  passport.  In  fact,  an  examination  of  the  cases  indicates  that  the 
conduct  which  has  generally  justified  refusal  of  a  passport  was  actually 
a  violation  of  the  laws  of  the  United  States.  Thus,  so  long  as  Mor- 
mon missionaries  abroad  taught  polygamy,  the  diplomatic  and  con- 
sular agents  of  the  United  States  were  instructed  to  refuse  protection 
to  Mormon  missionaries.^  The  causes  of  refusal,  it  seems,  are  not 
subject  to  general  rules,  but  depend  upon  considerations  applicable 
to  each  particular  case.^ 

'  Moore's  Dig.  Ill,  789-790;  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Gadsden,  Minister 
to  Mex.,  No.  54,  Oct.  22,  1855.  For  the  case  of  Mears  and  Gardiner,  see  Moore's  Arb. 
1255-65.  For  the  case  of  Winslow,  see  Mr.  Baj'ard,  Sec'y  of  State,  to  Mr.  Hanna, 
Minister  to  Argentine,  June  25,  1886,  Moore's  Dig.,  Ill,  922. 

2  The  reason  for  Mr.  Bayard's  so  holding  was  "because  foreign  convictions  of  crime 
are  not  to  be  regarded  as  extraterritorial  in  their  operation."  Mr.  Bayard,  Sec'y  of 
State,  to  Mr.  Walker,  Mar.  29,  1888,  For.  Rel.,  1888,  I,  420;  Moore's  Dig.  Ill,  923; 
The  American  Passport,  Wash.,  1898,  p.  119.  See  also  Mr.  Adee,  Act'g  Sec'y  of 
State,  to  Mr.  Conger,  For.  Rel.,  1899,  p.  186. 

'  For.  Rel.,  1884,  pp.  10,  198;  see  also  For.  Rel.,  1898,  pp.  347,  354. 

*  Mr.  Wilson,  Act'g  Sec'y  to  Mr.  Beaupre,  April  27,  1907,  For.  Rel.,  1907,  p.  1083. 
The  cases  cited  and  opinions  quoted  in  Moore's  Dig.  Ill,  919  et  seq.  show  that  the 
refusal  to  issue  a  passport  has  generally  rested  upon  a  breach  of  United  States  laws. 
These  cases  will  be  referred  to  later  {infra,  §  352).  In  the  Waldberg  case  passports 
were  refused  because  Waldberg  was  engaged  in  blackmailing  projects  and  was  disturb- 
ing or  endeavoring  to  disturb  the  relations  of  this  country  with  the  representatives 
of  foreign  powers.  While  it  is  true  that  the  intended  accomphshment  of  a  criminal 
purpose  would  justify  refusal  of  the  passport,  a  case  in  China  in  1899  in  which  .\ct'g 
Sec'y  Adee  directed  the  issuance  of  a  passport  to  two  lewd  women  in  Port  Arthur 
who  desired  its  protection  while  continuing  to  ply  their  disreputable  vocation  raises 


720  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

In  cases  of  actual  injury  to  person  or  property,  with  the  resultant 
demand  for  protection  and  the  advancement  of  a  diplomatic  claim, 
the  general  doctrine  of  censurable  conduct  of  a  claimant  operating 
as  a  bar  to  recovery  appears  to  apply  only  when  the  claim  is  directly 
connected  with  or  is  an  outgrowth  of  such  censurable  conduct.  Thus, 
the  Department  of  State  supported  various  claims  for  indemnity 
arising  out  of  the  destruction  or  injury  to  houses  of  prostitution  by 
Government  troops  in  China,  on  the  ground  that  the  occupation  and 
morals  of  the  claimant  were  in  no  way  connected  with  or  contributory 
to  the  loss,  following  in  this  respect  the  decisions  of  municipal  courts, 
which  hold  that  statutes  for  the  suppression  of  disorderly  houses  do 
not  justify  their  destruction.^ 

CONCEALMENT  AND   DENIAL   OF  CITIZENSHIP 

§  342.  Departmental  Rulings. 

Citizenship  represents  not  only  a  legal  relation  but  a  patriotic  one 
and  the  Department  of  State  in  extending  protection  may  take  into 
account  the  censurable  conduct  of  the  claimant  in  denying  or  conceal- 
ing his  citizenship.  Thus,  it  has  frequently  happened  that  naturalized 
citizens  have  returned  to  their  native  country  and  there,  concealing 
their  naturalization,  pass  themselves  off  as  citizens  of  the  native  coun- 
try until  occasion  makes  it  their  interest  to  ask  the  intervention  of 
the  country  of  their  adoption.  Mr,  Fish  and  other  secretaries  of  State 
have  considered  that  such  concealment  of  citizenship  absolves  the 
government  of  the  United  States  from  the  obligation  to  protect  the 
offenders  as  citizens,  at  least  while  they  remain  in  their  native  country.^ 

a  question  as  to  the  character  of  the  act  necessary  to  forfeit  the  right  to  a  passport. 
Mr.  Adee  could  not  find  that  these  practices  by  American  citizens,  however  nefarious, 
were  in  violation  of  the  United  States  statutes  (For.  Rel.,  1899,  p.  186).  We  must 
bear  this  holding  in  mind  in  considering  the  opinion  of  the  Solicitor  of  the  Department 
of  State  that  "if  it  appears  that  the  applicant  keeps  a  disorderly  house,  or  that  he 
is  engaged  in  gambling  or  that  he  has  violated  knowingly,  notoriously,  the  laws  of 
his  residence,  it  may  well  be  that  the  United  States  would  not  care  to  make  itself  a 
party  to  such  misconduct  by  the  issue  of  a  passport."  (Op.  of  the  SoUcitor,  For. 
Rel.,  1907,  pp.  1079-1080.) 

»  Welch  V.  Stowell,  2  Dougl.  (Mich.),  332,  19  L.  R.  A.  198;  Conithan  v.  Royal  Ins. 
Co.,  91  Miss.  386,  18  L.  R.  A.  n.  s.  214;  Phoenix  Ins  Co.  v.  Clay,  101  Ga.  331. 

'  Consular  Regulations  of  the  U.  S.,  1874,  paragraph  110;  Mr.  Fish,  Sec'y  of  State, 


CONCEALMENT  OF   CITIZENSHIP  721 

Natives  of  Russia  and  Turkey  who  become  naturalized  in  the  United 
States,  often  return  to  their  native  countries,  concealing  their  American 
naturalization  because  of  their  liability  to  punishment  for  expatriation. 
In  the  Notices  issued  to  former  subjects  of  those  countries,  the  Depart- 
ment has  included  the  following  provision:  "The  Department  of  State 
holds  that  a  naturalized  American  citizen  of  Russian  [Turkish]  origin 
who  returns  to  his  native  country  as  a  Russian  [Turkish]  subject, 
concealing  the  fact  of  his  naturalization  in  order  to  evade  Russian 
[Turkish]  law,  thereby  so  far  relinquishes  the  rights  conferred  upon 
him  by  his  American  naturalization  as  to  absolve  this  Government 
from  the  obligation  to  protect  him  as  a  citizen  while  he  remains  in 
his  native  land."  It  naturally  follows  that  the  Secretary  of  State, 
in  the  exercise  of  his  discretion,  may  refuse  to  issue  a  passport  to  a 
man  admittedly  an  American  citizen  who  has  concealed  or  denies  his 
American  citizenship.^ 

§  343.  Decisions  of  International  Tribunals. 

In  the  case  of  Casanova  before  the  United  States-Spanish  Mixed 
Commission  of  1871,^  Lowndes,  arbitrator,  expressed  the  opinion 
that  if  a  person  desired  to  protect  himself  by  his  citizenship,  he  must 
give  notice  of  it  and  claim  the  rights  he  may  possess  by  virtue  of  his 
nationality.  This  was  a  dictum  in  connection  with  the  agreement 
made  between  the  United  States  and  Spain,  Feb,  12,  1871,  to  cover 
the  case  of  the  many  Cubans  who  had  gone  to  the  United  States, 
remained  just  long  enough  to  secure  American  naturalization,  and 
then  returned  to  Cuba.  Spain  thus  obtained  recognition  for  her  con- 
tention that  such  an  individual  should,  in  order  to  claim  rights  as  an 
American  citizen,  have  given  notice  of  his  American  citizenship  to 
the  Spanish  authorities,  under  penalty  of  estoppel.  The  agreement 
read  in  part: 

to  Mr.  Hall,  May  3,  1869,  S.  Ex.  Doc.  108,  41st  Cong.,  2nd  sess.,  202,  Moore's  Dig. 
Ill,  770-771;  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Terrell,  Minister  to  Turkey, 
July  11,  1894,  For.  Rel.,  1894,  pp.  733,  735;  Mr.  HiU,  Act'g  Sec'y  of  State,  to  Mr. 
Griscom,  charge,  No.  345,  Feb.  16,  1901,  Moore's  Dig.,  Ill,  771. 

1  Memo,  of  the  Solicitor  referring  to  case  of  J.  H.  Brown,  January  2, 1907,  For.  ReL- 
1907,  p.  1079. 

2  Casanova  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2571-2. 


722  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

"The  arbitrators  shall  not  have  jurisdiction  of  any  reclamation 
made  in  behalf  of  a  native-born  Spanish  subject  naturalized  in  the  United 
States  if  it  shall  appear  that  the  same  subject-matter  having  been  ad- 
judicated by  a  competent  tribunal  in  Cuba  and  the  claimant,  having 
appeared  therein,  either  in  person  or  by  his  duly  appointed  attorney, 
and  being  required  by  the  laws  of  Spain  to  make  a  declaration  of  his 
nationality,  failed  to  declare  that  he  was  a  citizen  of  the  United  States; 
In  such  case  and  for  the  purposes  of  this  arbitration,  it  shall  be  deemed 
and  taken  that  the  claimant,  bij  his  own  default  had  renouticed  his  alle- 
giance to  the  United  States"  ^  {italics  ours). 

The  representation  by  a  naturalized  American  citizen  abroad  that 
he  is  not  an  American  operates  as  a  bar  to  recovery  upon  a  claim  be- 
fore a  commission  having  jurisdiction  of  claims  of  American  citizens. 
Thus,  in  the  well-known  case  of  Lacoste,^  who  permitted  himself  to 
be  regarded  as  a  French  subject  in  Mexico  and  presented  to  the  French- 
Mexican  Mixed  Commission,  as  a  French  subject,  the  same  claim 
which  he  later  presented,  as  a  United  States  citizen,  to  the  United 
States-Mexican  Commission  of  1868,  Thornton,  umpire,  expressed 
the  opinion  that  "by  such  conduct  ...  he  forfeited  his  right  to  con- 
sideration by  this  commission." 

Similarly,  the  birth  of  the  claimant  in  the  United  States,  of  French 
parents,  followed  by  his  removal  while  still  a  minor,  to  Mexico,  es- 
tablishing a  commercial  house  there  and  presenting  a  claim  as  a  French 
citizen  to  the  French-Mexican  Mixed  Commission  was  held  to  estop 


^  Moore's  Arb.  2562.  Notice  of  citizenship  was  considered  necessary  in  order 
to  maintain  a  claim  for  violation  of  rights  attaching  to  such  citizenship  in  the  case 
of  J.  O.  Wilson,  No.  121,  Delgado,  No.  31,  and  by  Potestad,  arbitrator  for  Spain, 
in  the  case  of  Zenea,  Moore's  Arb.  2571.  In  the  latter  case,  Potestad  held  that  the 
possession  even  of  a  passport  from  the  Cuban  RepubUc  designating  him  as  a  United 
States  citizen  coupled  with  his  own  silence  during  his  long  imprisonment  does 
not  constitute  notice.  The  failure  to  give  notice  does  not  seem  to  have  operated 
as  a  bar  to  a  claim  for  the  appropriation  of  property  (in  the  Zenea  case,  the  taking 
of  money ;  in  the  Wilson  case,  Moore's  Arb.  2454,  for  the  seizure  of  property),  although 
in  the  Wilson  case  it  did  bar  a  claim  for  the  use  of  property  by  Spain.  Lewenhaupt, 
umpire,  held  that  the  concealment  of  citizenship  (in  the  Wilson  case  for  over  51 
years)  by  a  claimant  does  not  forfeit  his  right  to  appear  before  the  commission  as  an 
American  citizen,  although,  as  stated,  it  bars  a  claim  for  the  une  of  property  during 
the  period  citizenship  was  concealed. 

2  Lacoste  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2561.  See  also  dictum  in 
Canevaro  (Italy)  v.  Peru,  April  25,  1910,  6  A.  J.  I.  L.  (1912),  746,  747. 


DECISIONS   OF    INTERNATIONAL   TRIBUNALS  723 

him  from  asserting  American  citizenship,  especially  where  both  by 
French  and  Mexican  law  he  was  considered  a  citizen  of  France.' 

It  has  already  been  observed  that  a  number  of  countries  require 
that  their  citizens  abroad  register  themselves  at  their  legation  or  con- 
sulate. Thus  Belgium,  Italy,  Spain,  Portugal,  France,  Mexico,  and 
now  by  the  act  of  1907,  the  United  States,  require  that  citizens  abroad 
register  their  citizenship  periodically  at  the  nearest  national  consular 
office.  Whether  the  failure  to  comply  with  these  requirements  would 
operate  to  forfeit  protection  is  open  to  question,  although  it  would 
undoubtedly  constitute  an  important  factor,  among  others,  in  deter- 
mining the  citizen's  right  to  protection.  Pradier-Fodere,  as  already 
noted,  denies  that  the  mere  failure  to  comply  with  a  formality  of  this 
kind  can  forfeit  such  an  important  and  vital  right  as  that  of  citizenship 
and  its  incidental  rights.  Similarl}',  certain  foreign  countries  have 
required  that  aliens  register  their  foreign  nationality  with  local  au- 
thorities in  order  to  acquire  the  benefit  of  the  rights  of  foreigners. 
This  has  usuall}'  taken  place  in  countries  frequently  disturbed  by 
revolutionary  troubles,  such  as  the  Latin- American  countries,  and 
particularly  Salvador,  Guatemala  and  others.  As  will  be  noted  here- 
after, the  United  States  and  other  countries  have  declined  to  consider 
the  rights  of  their  citizens  to  be  dependent  upon  compliance  with  a 
formality  of  this  kind. 

Mexico  in  its  constitution  of  1857  provided  that  aliens  acquiring 
real  estate  in  Mexico  became  Mexican  citizens,  unless  a  contrary 
intention  was  manifested.  In  the  United  States-Mexican  Mixed 
Claims  Commission  of  1868,  a  number  of  claims  were  presented  by 
American  citizens  who  had  purchased  Mexican  real  estate  and  had 
failed  to  declare  their  intention  to  retain  American  citizenship.  Lieber, 
Umpire,  in  one  such  case,^  in  declining  to  consider  such  omission  as 
a  forfeiture  of  citizenship,  expressed  himself  as  follows: 

"Citizenship  ...  is  too  weighty  a  matter  to  be  lost  or  gained  by 
mere  implication  or  omission  of  a  comparatively  trifling  act,  or  the 
registering  of  a  mere   declining  of  a   benefit,  which  the  coupling  of 

1  Gautier  (U.  S.)  v.  Mex.,  July  4,  1868,  Moore's  Arb.  24.50. 

2  Elliott  (U.  S.)  t'.  Mex.,  July  4,  1868,  Moore's  ,\rb.  2481;  the  same  opinion  in 
Anderson  and  Thompson  v,  Mexico,  American  Docket,  No.  333,  Op.  I,  p.  270, 
Moore's  Arb.  2480. 


724  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

Mexican  citizenship  with  acquisition  of  land  was  undoubtedly  intended 
to  be." 

Thornton,  who  succeeded  Lieber  as  umpire  of  that  commission,  in 
numerous  other  cases  ^  held  that  the  requirement  of  the  constitution 
that  the  holding  of  land  involved  Mexican  citizenship  is  permissive 
and  not  obligatory  and  that  the  failure  of  claimants  to  avail  them- 
selves of  that  permission  was  sufficient  proof  that  they  did  not  wish 
to  do  so. 

Foreigners,  it  seems,  were  required  by  Mexican  law  to  take  out 
a  letter  of  safety,  carta  de  seguridad.  Thornton,  umpire  of  the  1868 
commission,  considered  that  the  failure  to  take  out  such  a  letter  could 
not  forfeit  citizenship.^  The  fact  that  an  American  citizen  took  out 
a  carta  de  seguridad  as  a  citizen  of  Chile  was  considered  by  Umpire 
Thornton  (in  a  dictum)  ^  not  to  deprive  the  claimant  of  his  American 
citizenship,  although  it  might  have  afforded  the  United  States  govern- 
ment a  ground  to  refuse  him  its  protection. 

In  certain  cases  decided  by  the  Commission  under  the  Convention 
of  July  4,  1831  with  France,  the  misconduct  of  a  neutral  in  endeavor- 
ing to  mask  the  property  of  an  enemy  by  commingling  it  with  his 
own,  so  as  to  evade  capture  and  condemnation  was  punished  by  a 
forfeiture  of  his  national  claim,  as  a  neutral,  to  immunity  from  capture 
and  confiscation.^  On  the  other  hand,  the  colorable  transfer  of  vessels 
from  the  American  to  the  British  flag  during  the  Civil  War,  with  the 
purpose  of  evading  capture  by  the  Alabama  and  other  Confederate 
cruisers  was  held  by  both  courts  of  Alabaina  claims  not  to  forfeit  their 
right  to  American  protection.^ 

FRAUDULENT   AND    EXORBITANT   CLAIMS 

§  344.  Claims  against  United  States. 

A  false,  fictitious,  or  fraudulent  claim  against  the  United  States 
when  made  with  knowledge  of  its  fraudulent  character  is  punishable 

'  Opinions  quoted  and  cases  cited  in  Moore's  Arb.  2482. 

-  Smith  Bovven  (U.  S.)  v.  Mex.,  July  4,  1868,  No.  442,  American  Docket,  1, 156-214, 
cited  in  Moore's  Arb.  2482. 

'  Pradel  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2543-45. 

*  Moore's  Arb.  4479. 

'  Texan  Star,  Stevens  &  Co.  v.  U.  S.,  Moore's  Arb.  2378,  4653,  4673. 


FRAUDULENT  AND    EXORBITANT   CLAIMS  725 

by  imprisonment  at  hard  labor  from  one  year  to  five  years,  or  fine 
from  one  thousand  to  five  thousand  dollars,  according  to  §  5438  of 
the  Revised  Statutes,  which  specifies  the  character  of  the  acts  which 
shall  be  considered  as  coming  within  the  provisions  of  the  section. 
In  the  Court  of  Claims  Act  (Revised  Statutes,  §  1086)  which  has  now 
become  §  172  of  the  new  judicial  code  (36  Stat.  L.,  I,  1141),  it  is  provided 
that 

"any  person  who  corruptly  practices  or  attempts  to  practice  any  fraud 
against  the  United  States  in  the  proof,  statement,  establishment,  or 
allowance  of  any  claim  .  .  .  shall  ipso  facto  forfeit  the  same  to  the 
government." 

The  Court  of  Claims  upheld  the  terms  of  the  statute  in  the  case  of 
Furay.^  Under  the  Abandoned  or  Captured  Property  Act,  in  which 
loyalty  was  a  jurisdictional  fact,  the  Court  of  Claims  held  that  the 
concealment  of  disloyalty  on  the  part  of  a  claimant  is  such  "fraud, 
wrong  or  injustice"  against  the  United  States  as  will  entitle  the  govern- 
ment to  a  new  trial  under  the  provisions  of  the  Act  of  June  25,  1868.'- 

§  345.  Claims  against  Foreign  Governments. 

The  United  States  has  on  a  number  of  occasions  been  made  the  \'ictim 
of  fraud  in  presenting  claims  against  a  foreign  government.  Where 
the  fraud  is  discovered  in  advance  the  Department  of  State  will  of 
course  decline  to  press  the  claim  against  the  foreign  government. 
Secretary  of  State  Seward  ably  expressed  the  practice  of  the  Department 
in  a  note  to  the  British  minister  on  May  30,  1862: 

"Nations  cannot  afford  to  have  the  intercourse  which  the  interests 
of  their  citizens  require  to  be  kept  open,  subjected  to  the  annoyances 
and  risks  which  would  result  from  the  admission  of  fraud  or  duplicity 
into  such  intercourse.  It  has  therefore  become  a  usage,  having  the 
authority  of  a  principle,  in  the  correspondence  between  enlightened 
governments,  in  relation  to  the  claims  of  citizens  or  subjects,  that  any 
deception  practiced  by  a  claimant  upon  his  ovm  government  in  regard 
to  a  controversy  with  a  foreign  government,  for  the  purpose  of  enhancing 
his  claim,  or  influencing  the  proceedings  of  his  government,  forfeits  all 

'  Furay  v.  The  United  States,  34  Ct.  CI.  171.  See  also  Act  of  the  Hawaiian  govern- 
ment, March  16,  1895,  for  the  judicial  investigation  of  claims,  parag.  7,  87  St.  Pap. 
1230-1231. 

2  Tait  V.  The  United  States,  5  Ct.  CI.  638. 


726  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

title  of  the  party  attempting  such  deception  to  the  protection  and  aid  of 
his  government  in  the  controversy  in  question,  because  an  honorable 
government  can  not  consent  to  complicate  itself  in  a  matter  in  which 
it  has  itself  been  made  or  attempted  to  be  made  the  victim  of  a  fraud, 
for  the  benefit  of  the  dishonest  party.'  '^ 

The  fraud,  however,  has  sometimes  been  discovered  only  after  the 
claim  was  paid  by  the  foreign  government  either  in  whole  or  in  part, 
through  diplomatic  negotiations  or  through  international  arbitration. 
In  such  cases  the  Secretary  of  State  or  Congress  has  set  aside  a  settle- 
ment or  award  obtained  by  fraud  and  has  not  only  declined  to  pay 
undistributed  portions  to  fraudulent  claimants,  but  has  refunded  to 
the  foreign  government  such  j)ortions  of  awards  made  on  fraudulent 
claims  as  had  already  been  distributed  to  the  claimants.  Thus,  all 
the  awards  made  by  the  1866  United  States- Venezuelan  Commission 
were  set  aside  on  the  ground  of  fraud.  ^  Awards  of  the  Domestic  Com- 
mission under  the  Act  of  March  3,  1849  were  set  aside  by  the  courts 
in  the  famous  Gardiner  case  ^  and  by  direct  act  of  Congress  in  the 
Atocha  ^  case.  Congress  similarly  reopened  two  of  the  awards  under 
the  Chinese  Claims  Treaty  of  1858,^  and  in  the  case  of  the  Caroline,^ 
the  Secretary  of  State  refunded  to  Brazil,  against  the  protest  of  the 
claimant,  certain  moneys  which  had  been  paid  by  Brazil  after  dip- 
lomatic settlement.  Congress  appropriated  a  large  sum  to  reimburse 
Brazil  for  moneys  paid  to  United  States  representatives,  but  which 
never  reached  the  Treasury.^ 

The  most  famous  cases  of  the  representation  of  fraudulent  claims 
were  those  of  Weil  and  La  Abra  Silver  Mining  Co.  before  the  United 
States-Mexican  Mixed   Claims   Commission  of    1868.^     These   cases 

"  Mr.  Seward,  Sec'y  of  Stato,  to  Lord  Lyons,  British  Min.,  May  30,  1862  (MS. 
Notes  to  Gt.  Brit.,  IX,  187;  Moore's  Dig.  VI,  622). 

2  Moore's  Arb.  1659  et  seq.  It  is  true  that  the  fraud  was  on  the  part  of  the  tribunal 
and  not  of  the  claimants. 

3  For  the  full  history  of  this  case,  see  Moore's  Arb.  1255-1266. 
*  13  Stat.  L.  595;  16  Stat.  L.  633. 

s  15  Stat.  L.  440;  20  Stat.  L.  171. 

«  Moore's  Arb.  1342. 

'  18  Stat.  L.  70;  S.  Ex.  Doc.  52,  43rd  Cong.,  1st  sess. 

8  For  a  full  history  of  these  cases  up  to  the  decision  of  the  Supreme  Court  in  the 
La  Abra  case  and  the  refund  to  Mexico,  see  Moore's  Arb.  1324-1349.  See  also 
supra,  p.  375. 


CLAIMS   AGAINST    FOREIGN    GOVERNMENTS  72/ 

were  referred  to  the  Commission  of  1868  without  prev'ous  examination 
by  the  Department  of  State.  Large  awards  were  made  on  both  claims, 
induced  by  perjured  testimony  of  the  most  vicious  character.  Mexico 
paid  a  number  of  installments  on  the  awards,  protesting  through  many 
years  that  they  were  obtained  by  fraud.  For  a  long  time  the  Depart- 
ment of  State  insisted  on  the  payments  on  the  ground  of  the  finality 
of  the  award,  but  the  suspicion  of  fraud  became  so  strong  that  finally 
Congress  and  the  State  Department  itself  recommended  a  reexamination 
of  the  claims.  A  treaty  providing  for  an  international  commission 
for  this  purpose,  after  dragging  through  the  Senate  for  a  number  of 
sessions,  remained  unconfirmed,  and  finally  in  1892  Congress  passed 
an  act  conferring  jurisdiction  on  the  Court  of  Claims  to  investigate 
both  the  Weil  and  La  Abra  cases  and  to  determine  whether  the  charges 
of  fraud  were  well  founded.  After  proper  examination,  the  Court 
of  Claims  held  that  the  awards  in  both  cases, ^  were  obtained  by  fraud 
and  perjury.  Thereupon,  the  Secretary  of  State  returned  to  Mexico 
all  payments  on  these  two  claims  which  wore  in  the  hands  of  the  De- 
partment,- and  Congress  appropriated  a  large  sum  of  money  for  the 
re-payment  to  Mexico  of  the  installments  which  had  already  been 
turned  over  to  the  claimants.^  Before  the  decision  as  to  the  fraudulent 
character  of  the  claims  was  reached,  assignees  of  the  original  claimants 
brought  two  mandamus  proceedings  to  compel  the  distribution  of  the 
sums  received  by  the  Department  of  State.  One  was  directed  against 
Secretary  Frelinghuysen,  and  the  other  against  Secretary  Blaine.^ 
In  dismissing  the  petitions  for  mandamus,  the  Supreme  Court  examined 
thoroughly  the  legal  position  of  the  government  in  the  presentation 
of  a  claim  against  a  foreign  government  and  its  liability  for  the  distribu- 
tion of  an  award  obtained  by  fraud.  One  paragraph  may  be  quoted 
from  the  decision  of  Chief  Justice  Waite  in  the  Frelinghuysen  case: 

"The  presentation  by  a  citizen  of  a  fraudulent  claim  or  false  testi- 
mony for  reference  to  the  commission  was  an  imposition  on  his  own  gov- 
ernment, and  if  that  government  afterwards  discovered  that  it  had  in 

1  U.  S.  V.  La  Abra  Silver  Mining  Co.,  29  Ct.  CI.  432;  32  Ct.  CI.  462,  affirmed  in  175 
U.  S.  423.    U.  S.  V.  Weil,  29  Ct.  CI.  523;  35  Ct.  CI.  42. 

2  For  Rel.,  1900,  pp.  781-782. 
»  32  Stat.  L.  5. 

*  Frelinghuysen  v.  Key,  110  U.  S.  63;  U.  S.  ex  rel  Boynton  v.  Blaine,  139  U.  S.  306. 


728  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

this  way  been  made  an  instrument  of  wrong  toward  a  friendly  power, 
it  would  be  not  only  its  right  but  its  duty  to  repudiate  the  act  and  make 
reparation  as  far  as  possible  for  the  consequences  of  its  neglect.  .  .  . 
Claims  presented  and  evidence  submitted  to  such  an  [arbitral]  tribunal 
must  necessarily  bear  the  impress  of  the  entire  good  faith  of  the  govern- 
ment from  which  they  come  and  it  is  not  to  be  presumed  that  any  gov- 
ernment will  for  a  moment  allow  itself  knowingly  to  be  made  the  in- 
strument of  wrong  in  any  such  proceeding." 

As  an  incident  to  the  Weil  and  La  Abra  cases  we  may  mention  the 
bill  ^  to  prevent  and  punish  the  prosecution,  under  the  protection 
of  the  United  States,  of  fraudulent  claims  against  foreign  governments, 
which  was  introduced  in  Congress  on  June  16,  1884.  The  provisions 
of  the  bill  followed  those  of  §  5438  of  the  Revised  Statutes  {supra, 
p.  725)  which  punished  the  presentation  of  fraudulent  claims  against 
the  United  States,  and  were  intended  to  make  it  an  offense  equally 
punishable  to  present  fraudulent  claims  to  the  Department  of  State 
for  prosecution  against  a  foreign  government.^  The  bill  seems  never 
to  have  passed. 

It  has  already  been  seen  that  naturalization  obtained  by  fraud  will  not 
serve  as  a  title  to  protection,  but  will,  in  fact,  upon  discovery,  result 
in  a  withdrawal  of  protection,  and  under  certain  circumstances,  in 
a  proceeding  for  the  cancellation  of  the  naturalization  certificate. 

As  early  as  1856  Secretary  Marcy  gave  expression  to  the  policy 
that  the  Department  of  State 

'Svill  not  present  to  a  foreign  government  claims  for  damages,  which, 
though  based  on  a  wrong  actually  done,  are  speculative  and  exorbitant 
in  amount."  ^ 

It  has  been  observed,  however,  that  the  Department,  in  the  exercise 
of  its  discretion  and  full  control  over  the  claim,  does  not  necessarily 
reject  it,  but  may  reduce  it  in  amount. 

EVASION    OF   NATIONAL   DUTIES 

§  346.  Desertion. 

The  most  serious  offense  of  this  character  is  desertion  from  mili- 

'  H.  R.  7352,  48th  Cong.,  1st  sess. 

*  Hovise  Rep.  2391,  48th  Cong.,  2nd  sess. 

»  Mr.  Marcy,  Sec'y  of  State,  to  Mr.  Munro,  Jan.  10,  1856,  Moore's  Dig.  VI,  616. 


EVASION    OF   NATIONAL   DUTIES  729 

tary  service.     The  instructions  for  the  Government  of  Armies  of  the 
United  States  in  the  Field  of  April  24,  1863  ^  provided  in  §  48  that 

"Deserters  from  the  American  Army,  having  entered  the  service  of 
the  enemy,  suffer  death  if  they  fall  again  into  the  hands  of  the  United 
States,  whether  by  capture  or  being  delivered  up  to  the  American  Army; 
and  if  a  deserter  from  the  enemy,  having  taken  service  in  the  Army 
of  the  United  States,  is  captured  by  the  enemy,  and  punished  by  them 
with  death  or  otherwise,  it  is  not  a  breach  against  the  law  and  usages  of 
war,  requiring  redress  or  retaliation." 

Section  1996  of  the  Revised  Statutes  which  incorporated  an  Act  of 
March  3,  1865  '  provides  that 

"All  persons  who  deserted  the  military  or  naval  service  of  the  United 
States  and  did  not  return  thereto  or  report  themselves  to  a  provost 
marshal  within  sixty  days  after  the  issuance  of  the  proclamation  by  the 
President,  dated  the  11th  day  of  March,  1865,  are  deemed  to  have 
voluntarily  relinquished  and  forfeited  their  rights  of  citizenship,  as  well 
as  their  right  to  become  citizens;  and  such  deserters  shall  be  forever 
incapable  of  holding  any  office  of  trust  or  profit  under  the  United  States, 
or  of  exercising  any  rights  of  citizens  thereof." 

The  forfeiture  did  not,  however,  apply  to  soldiers  and  sailors  who 
had  served  according  to  their  enlistment  up  to  the  19th  of  April,  1865. 
The  penalties  of  §  1996  were  extended  in  §  1998  to 

"every  person  who  hereafter  deserts  the  military  or  naval  service  of  the 
United  States,  or  who,  being  dulj'  enrolled,  departs  the  jurisdiction 
of  the  district  in  which  he  is  enrolled,  or  goes  beyond  the  limits  of  the 
United  States,  with  intent  to  avoid  any  draft  into  the  military  or  naval 
service,  lawfully  ordered."  ' 

It  has,  however,  been  held  that  the  provisions  of  §§  1996  and  1998 
can  only  take  effect  upon  conviction  by  a  court-martial.''  Desertion 
can  be  exercised  only  by  persons  of  lawful  age  and  not  by  those  who 
leave  their  country  under  the  charge  or  conviction  of  crime  or  other 

1  General  Orders,  No.  100,  April  24,  1863,  War  of  the  Rebellion,  Official  Records, 
Series  3,  v.  Ill,  p.  154.    Quoted  in  Moore's  Dig.  VII,  234-235. 

2 13  Stat.  L.  490,  ch.  79,  §  21. 

3  See  also  United  States  v.  Snow  (1877),  2  Flipp  (U.  S.),  127  Fed.  Gas.,  No.  16,3.50; 
Kurtz  V.  Moffitt  (1885),  115  U.  S.  501. 

*  Kurtz  V.  Moffitt  (1885),  115  U.  S.  501;  Ruber  v.  Reily  (1866),  53  Pa.  St.  112; 
State  V.  Symonds  (1869),  57  Me.  148;  Severance  v.  Healey  (1870),  50  N.  H.  448; 
15  Op.  Atty.  Gen.  159  (1876). 


730  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

disabilities.^  Forfeiture  of  goods  cannot,  however,  it  seems,  be  in- 
flicted as  a  penalty  under  this  section,^  The  court  in  Huber  v.  Reily 
(1866),  said  that 

"the  forfeiture  which  it  [the  act]  prescribes,  like  all  other  penalties 
for  desertion,  must  be  adjudged  to  the  convicted  person,  after  trial  by  a 
court-martial,  and  sentence  approved," 

and  the  conviction,  it  seems,  can  be  approved  only  by  a  duly  authen- 
ticated record.^ 

Practically  every  European  country  provides  severe  penalties  for 
desertion  and  evasion  of  military  service.  Generally  the  penalty 
involves  the  loss  of  citizenship  and  always  the  loss  of  the  right  to  pro- 
tection. In  countries  where  military  service  is  compulsory,  such  as 
Germany  and  France,  in  which  a  citizen  remains  subject  to  call  to 
the  reserves,  when  such  service  is  deemed  necessary  by  the  govern- 
ment, he  likewise  incurs  severe  penalties  for  a  failure  to  return  home 
and  respond  to  the  call.  This  failure  to  heed  the  jus  avocandi,  as  it 
is  called,  generally  involves  a  loss  of  citizenship  and  with  it  a  loss  of 
the  right  to  national  protection.^ 

It  has  been  observed  that  the  United  States  has  had  difficulty  in 
determining  whether  the  taking  of  service  abroad  by  a  citizen  of  the 
United  States  involved  the  loss  of  citizenship  and  with  it  a  loss  of 
national  protection.  The  test  finally  applied  was  whether  the  foreign 
service  involved  the  taking  of  an  oath  of  allegiance.  If  in  entering 
such  foreign  service  an  oath  of  allegiance  to  the  foreign  state  was  nec- 
essary and  was  taken,  the  citizen  thereby  forfeited  his  right  to  protec- 
tion ^  at  the  very  least,  and  since  the  Act  of  March  2,  1907,  his  citizen- 
ship as  well. 

'  The  American  Passport,  Washington,  1898,  pp.  131-132. 

2  Cavandcr's  Case  (1872),  8  Ct.  CI.  283. 

»  Strong,  J.,  in  Huber  v.  Reily,  53  Pa.  St.  112,  120. 

^  Supra,  p.  686.  .\s  to  the  German  rules  for  the  forfeiture  of  protection  by  evasion 
of  military  service,  see  §  VI  of  the  Dienstinstruktion  of  June  6,  1871,  law  concerning 
the  organization  of  the  consular  service,  Nov.  8,  1867;  Zorn,  Staatsrecht  des  deut- 
schen  Reiches,  II,  481,  note  139. 

*  See  the  recommendations  of  the  Board  on  Citizenship,  expatriation  and  pro- 
tection, H.  Doc.  326,  .59th  Cong.,  2nd  sess.  So  far  as  expatriation  is  concerned  a 
number  of  court  decisions  (all  prior  to  the  Act  of  1907)  have  declined  to  support 
the  doctrine  that  the  taking  of  an  oath  of  allegiance  to  a  foreign  sovereign  forfeited 


EVASION    OF   DUTIES    OF   CITIZENSHIP   GENERALLY  731 

While  the  United  States  does  not  by  statute  prescribe  loss  of  citizen- 
ship in  case  of  a  failure  to  return  in  time  of  war,  the  Supreme  Court 
has  expressed  itself  as  follows:  ^ 

"The  duty  of  a  citizen  when  war  breaks  out,  if  it  be  a  foreign  war 
and  he  is  abroad,  is  to  return  without  delay." 

The  Citizenship  Board  appointed  in  1906  to  make  recommendations 
for  a  change  in  the  laws  concerning  citizenship,  expatriation,  and 
protection,  added  that  this  duty  was  equally  evident  if  the  government 
is  threatened  by  domestic  insurrection.  The  government  should  be 
able  to  control  the  services  of  every  citizen  and  the  right  of  changing 
allegiance  should  not  exist  when  the  state  is  in  peril.  To  this  effect 
Halleck's  statement  was  quoted,  namely,  that 

"the  right  of  voluntary  expatriation  exists  only  in  time  of  peace  and  for 
lawful  purposes."  - 

Secretary  of  State  Seward,  in  considering  the  claim  of  a  naturalized 
citizen,  a  native  of  Sicily,  who  returned  to  that  country  shortly  after 
his  naturalization  and  in  1860  was  despoiled  of  some  of  his  property 
by  the  soldiers  of  the  Kingdom  of  Naples  during  the  siege  of  Palermo 
in  that  year,  referred  to  the  duty  of  a  citizen  to  return  home  in  times 
of  domestic  insurrection  as  follows: 

"The  reflection  is  a  very  obvious  one  that  in  such  a  crisis  a  good  and 
loyal  citizen  might  be  expected  to  be  at  home  in  the  United  States  and 
cooperate  with  his  fellow  citizens  in  maintaining  the  government  against 
domestic  enemies  rather  than  to  be  residing  abroad  and  invoking  aid 
to  prosecute  claims  of  his  own  for  redress  of  injuries  which  he  may  have 
suffered  when  domiciled  amid  the  perils  of  a  foreign  revolution."  ^ 

§  347.  Evasion  of  Duties  of  Citizenship  Generally. 

The  right  of  the  government  to  decline  protection  on  account  of 
an  evasion  of  national  duties  has  come  up  frequently  in  the  case  of 
citizens  residing  abroad  for  a  long  time,  or  in  the  case  of  naturalized 

citizenship.  Talbot  v.  Jansen  (1795),  3  Dallas,  133;  Fish  v.  Stoughton  (1801),  2 
Johns.  Cas.  407;  see,  however.  Brown  v.  Dexter  (1884),  66  Cal.  39  and  Kircher  v. 
Murray  (1893),  54  Fed.  617. 

1  5  Wall.  408. 

2  House  Document  326,  59th  Cong.,  2nd  seas.,  28. 

» Seward,  Sec'y  of  State,  to  Mr.  Marsh,  May  7,  1863,  For.  Rel.,  1863,  pt.  II,  p.  1067. 


732  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

citizens  returning  to  their  native  country.  Thus,  Secretary  of  State 
Fish,  referring  to  a  statement  of  Chief  Justice  Marshall's  in  the  case 
of  Murray  v.  The  Schooner  Charming  Betsy, ^  stated: 

"  If,  on  the  one  hand,  the  Government  assumes  the  duty  of  protecting 
his  rights  and  his  privileges,  on  the  other  hand  the  citizen  is  supposed 
to  be  ever  ready  to  place  his  fortune  and  even  his  life  at  its  service, 
should  the  public  interest  demand  such  a  sacrifice.  If,  instead  of  doing 
this,  he  permanently  withdraws  his  person  from  the  national  jurisdic- 
tion, if  he  places  his  property  where  it  cannot  be  made  to  contribute 
to  the  national  necessities;  if  his  children  are  born  and  reared  upon 
a  foreign  soil,  with  no  purpose  of  returning  to  submit  to  the  juris- 
diction of  the  United  States,  then,  in  accordance  with  the  principles 
laid  down  by  Chief  Justice  Marshall  and  recognized  in  the  14th  amend- 
ment, and  in  the  act  of  1868,  he  has  so  far  expatriated  himself  as  to 
relieve  this  Government  from  the  obligation  of  interfering  for  his  pro- 
tection." 2 

It  has  been  noted  that  in  determining  the  right  of  native  citizens, 
permanently  resident  abroad  under  the  regulations  of  July  26,  1910, 
to  receive  the  protection  of  the  United  States,  the  evasion  of  national 
duties  of  citizenship  constitutes  an  important  factor.  The  former  diffi- 
culties in  establishing  the  title  to  protection  of  foreign-domiciled  nat- 
uralized citizens  have  been  much  simplified  by  the  presumptions  of 
expatriation  following  a  two  and  five  years'  residence  abroad,  under 
the  Act  of  March  2,  1907.^ 

The  United  States  has  been  frequently  placed  in  a  delicate  situation 
by  the  demand  for  protection  of  naturalized  citizens  returning  to 
their  native  countries,  where  military  service  is  compulsory.  These  in- 
dividuals having  departed  from  their  native  country  just  prior  to  becom- 
mg  eligible  for  military  service,  have  secured  naturalization  in  the  United 
States  and  then,  returning  to  their  native  country,  have  boasted  of 
their  immunity  from  service, — to  the  moral  detriment  of  the  community 
in  which  they  live.  The  United  States  has  not  resisted  the  right  of 
the  foreign  countries  thus  prejudiced  to  expel  these  undesirable  pseudo- 
Americans.     These  individuals  have  as  a  matter  of  fact  committed 

'  Murray  v.  The  Schooner  Charming  Betsy,  2  Cranch,  120. 

2  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Washburne,  Minister  to  France,  June  28,  1873, 
For.  Hcl.,  187.3,  I,  256,  259,  Moore's  Dig.  Ill,  763. 
'  Supra,  §  330. 


BKKACH    OF    LOCAL    (FOREIGN)    LAW  733 

a  fraud  both  upon  their  native  and  upon  their  adopted  country  in  that 
they  seek  to  escape  the  obligations  due  to  both  and  to  secure  the  privi- 
leges of  citizenship  in  both  as  occasion  may  make  it  their  interest 
to  make  use  of  them.^  The  interposition  of  the  United  States  has  been 
limited  to  securing  an  amelioration  of  the  hardship  of  expulsion  in 
particular  cases,  as,  for  example,  securing  an  extension  of  the  order 
until  the  individual  could  adjust  his  business  affairs  or  could  remove 
his  family,  or  similar  alleviation  of  a  harsh  situation. 

Moreover,  where  American  citizens  by  birth  have  gone  abroad  at 
an  early  age  and  remained  permanent  residents  in  countries  where 
military  service  is  compulsory,  the  United  States  has  declined  to  aid 
tliem  in  escaping  such  military  service,  in  the  absence  of  evidence 
that  the  individual  intends  to  return  to  the  United  States  and  reclaim 
his  American  citizenship  and  assume  the  duties  of  an  American  citi- 
zen.^ Where  a  naturalized  citizen  has  failed  to  fulfill  mihtary  duties 
which  had  accrued  and  were  owing  at  the  time  of  his  emigration  from 
his  native  country,  the  United  States  will  decline  to  protect  him. 
By  treaty  and  diplomatic  negotiations,  the  United  States  has,  however, 
established  the  definite  policy  that  they  will  protect  the  naturalized 
citizen  against  the  fulfillment  of  military  duty  which  had  not  become 
due  and  owing  from  him  at  the  time  of  his  emigration  from  his  native 
country.^ 

BREACH    OF   LOCAL    (fOREIGN)    LAW 

§  348.  Limitations  on  Diplomatic  Protection. 

It  is  a  fundamental  principle  of  international  law  that  the  citizen 
abroad  must  obey  the  local  law. 

'  Our  diplomatic  correspondence  shows  frequent  cases  of  this  character.  Two  of 
the  leading  cases  are  those  of  Hofmann,  For.  Rel.,  1894,  pp.  30-36  (see  the  striking 
letter  of  Mr.  Tripp  to  Mr.  Gresham,  Sec'y  of  State,  August  13,  1894),  and  the  case 
of  Selig  Fink,  For.  Rel.,  1908,  p.  18,  at  p.  21.  See  also  cases  in  Prussia,  For.  Rel., 
1903,  pp.  457-459.  These  cases  are  of  course  always  judged  on  their  merits  and  all 
the  circumstances  taken  into  account;  and  it  requires  the  evidence  of  some  appaiv 
ently  fraudulent  evasion  of  national  responsibilities  to  induce  the  Department  to 
withdraw  its  protection  from  citizens  naturalized  in  proper  form. 

2  Edward  Pierrepont,  Atty.  Gen.,  to  Hamilton  Fish,  Sec'y  of  State,  For.  Rel.,  1875, 
I,  565. 

'  Snjtra,  p.  676. 


734  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

''Americans,  whether  native  born  or  naturalized,  owe  submission 
to  the  same  laws  in  Great  Britain  as  British  subjects,  while  residing 
there  and  enjoying  the  protection  of  that  government."  ' 

The  question  has  frequently  arisen  in  our  international  relations 
as  to  how  far  the  United  States  will  protect  a  citizen  abroad  who  has 
violated  the  local  law  of  the  country  of  his  residence.  As  will  be  noted, 
when  criminal  proceedings  are  involved,  protection  has  not  been  ab- 
solutely declined,  but  it  has  in  general  been  strictly  limited  to  securing 
a  fair  trial  and  the  application  of  the  ordinary  penalties  or  a  concurrent 
attempt  to  ameliorate  the  harshness  of  arbitrary  measures. 

In  the  case  of  the  Fenian  movement  in  Ireland  many  naturalized 
Americans,  natives  of  Ireland,  were  involved  in  suspicion  of  having 
incited  the  movement  and  were  arrested  under  the  suspension  of  the 
habeas  corpus  act  in  Ireland  passed  in  February,  1866.  The  United 
States  was  often  placed  in  a  delicate  position  in  extending  protec- 
tion. The  principle  generally  followed  may  be  expressed  in  the  in- 
structions of  Mr.  Adams,  Minister  of  the  United  States,  to  Mr.  West, 
American  Consul  at  Dublin,  namely: 

"To  secure  a  proper  share  of  protection  for  innocent  persons  who  were 
citizens  of  the  United  States  without  attempting  to  interfere  on  behalf 
of  those  who  had  justly  subjected  themselves  to  suspicion  of  complicity 
with  treasonable  practices."  ^ 

In  the  case  of  Haggerty  against  Mexico  ^  a  claim  was  made  for 
the  destruction  of  property  of  a  neutral  American  citizen  in  Texas, 
the  property  being  under  the  guaranty  of  the  protection  of  Mexico 
under  the  treaty  of  1831  between  the  United  States  and  Mexico.  On 
proof,  however,  that  the  property  was  introduced  into  Mexico  without 
having  paid  customs  duties  and  in  disregard  of  a  decree  closing  the 
port  and  without  certified  invoice  from  the  Mexican  consul,  the  Com- 
mission held  that  the  property  was  introduced  not  under  the  protection 
of  Mexico,  but  in  defiance  of  it  and  was  hence  without  rights  under 
the  treaty  mentioned. 

>  Mr.  Seward,  Sec'y  of  State,  to  Mr.  Adams,  Dipl.  Cor.,  186G,  Pt.  1,  cited  from 
appendix  to  British  Report  on  Aliens  and  Naturalization,  1869,  pp.  47-48. 

'  Cockburn  on  Nationality,  London,  1869,  p.  86. 

*  Haggerty  et  al.  (U.  S.)  v.  Mexico,  Domestic  Commission  under  act  of  Congreaa, 
Mar.  3,  1849,  Moore's  Arb.  2664. 


BREACH    OF    LOCAL    (FOREIGN)    LAW  735 

A  number  of  cases  have  arisen  in  which  the  injury,  to  redress  which 
protection  was  demanded,  arose  out  of  a  breach  of  the  local  law  by 
a  foreign  subject.  In  one  such  case,  an  officer  of  the  U.  S.  S.  Mohican 
in  a  Brazilian  port  fired  his  pistol  at  one  of  the  boatmen  trying  to 
desert.  The  officer  was  arrested  and  then  released  with  a  reprimand. 
On  complaint  by  the  captain  that  this  was  an  offense  to  the  officer's 
dignity  and  to  our  flag  Mr.  Seward,  Secretary  of  State,  answered 
that  the  officer's  act 

"was  a  breach  of  the  peace,  offensive  to  the  dignity  of  Brazil,  which  the 
Government  of  that  country  may  well  expect  the  United  States  to  disa- 
vow and  censure.  .  .  .  The  United  States  are  not  looking  out  for  causes 
of  complaint  against  foreign  states." 

It  is  a  general  rule  that  an  injury  to  an  alien  arising  out  of  a  breach 
of  or  failure  to  observe  the  local  law  or  police  regulations  involves 
a  complete  or  partial  forfeiture  by  the  alien  of  the  protection  of  his 
own  government,^  though  the  government  will  usually  insist  that 
his  trial  be  fair  and  the  punishment  not  unusual  or  disproportionate 
to  his  offense.  International  commissions  have  followed  this  rule. 
Thus,  in  the  case  of  Santangelo,  a  naturalized  American  citizen,  ex- 
pelled from  Mexico  for  publishing  a  periodical  in  which  articles  appeared 
tending  to  ridicule  Mexico,  the  commissioners  under  the  convention 
of  April  11,  1839  made  a  large  award  because  the  expulsion  was  ex- 
tremely harsh  and  disproportionate  to  the  offense.  The  violation 
of  a  proclamation  of  Gen.  Butler  in  New  Orleans  during  the  Civil  War 
prohibiting  the  publication  of  articles  reflecting  on  the  United  States, 
etc.,  by  a  certain  Dubos,  a  French  citizen,  was  held  to  have  justified 

'  Brand  (U.  S.)  v.  Peru,  January  12,  1863,  Moore's  Arb.  1625-1626;  Baker  (U.  S.) 
V.  Peru,  January  12,  1863,  Moore's  Arh.  1626;  Case  of  Koenigsberger  in  Guatemala 
(attempted  smuggling),  For.  Rel.,  1901,  pp.  252-260;  Case  of  the  British  brigantine 
Hihernia,  unlawfully  engaged  in  diving  operations  on  the  coast  of  Peru,  35  St.  Pap. 
1301.  See  also  the  cases  of  the  British  ship  Vixen,  seized  by  Russia  for  carrying  a 
prohibited  commodity  (salt)  into  a  Russian  port  (26  St.  Pap.  2-60)  and  the  British 
schooner  Armuiah,  seized  by  Russia  for  seal-catching  without  license  in  Russian 
waters,  in  which  cases  Great  Britain  declined  to  interfere  with  the  regular  course 
of  Russian  law  confiscating  the  vessels.  American-owned  vessels  in  Turkey,  in  1912, 
were  warned  that  a  continued  violation  of  local  navigation  regulations  would  result 
in  a  withdrawal  of  protection. 


736  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

his  arrest,  but  the  failure  to  try  him  by  military  commission  in  accord- 
ance with  the  proclamation  warranted  an  award. ^ 

We  have  seen  that  naturalized  citizens  returning  to  their  native 
country  are  frequently  called  upon  to  do  military  service.  Where 
such  service  had  accrued  and  was  due  at  the  time  of  emigration  from 
their  native  country,  protection  is  withdrawn.  Where  the  liability 
to  service  has  not  accrued  previous  to  emigration,  the  United  States 
has  generally  been  able  to  relieve  them  from  the  burdens  of  service. 
However,  by  the  local  law  of  many  countries  the  evasion  of  service 
is  a  violation  of  national  law  and  is  punished  by  expulsion  should 
the  citizen  return  to  his  native  country.  It  has  been  observed  that 
in  such  cases  the  United  States  limits  its  protection  against  the  order 
of  expulsion  to  securing  either  an  extension  of  the  order  until  business 
affairs  can  be  adjusted,  or  a  similar  amelioration  of  the  arbitrary  ap- 
plication of  the  order. 

§  349.  Acquittal  of  Criminal  Charges.    International  Claim  Unusual. 

Demands  for  protection  have  come  before  foreign  offices  on  the 
part  of  citizens  abroad  who  were  acquitted  of  alleged  crimes  by  the 
local  courts  and  thereupon  demanded  damages  from  the  local  govern- 
ment. The  United  States  in  a  recent  case  of  this  kind,^  in  which  a 
citizen  was  acquitted  of  the  charge  of  counterfeiting,  declined  to  press 
his  claim  on  the  ground  that  his  acquittal  did  not  establish  his  inno- 
cence of  the  crime  charged,  but  that  his  defense  was  technical  and  suc- 
cessfully showed  that  the  statutory  crime  of  counterfeiting  had  not 
been  committed. 

Great  Britain,  in  a  case  in  which  a  British  subject  had  been  convicted 
in  Haiti  through  gross  irregularities  in  the  trial,  limited  its  protection 
to  demanding  his  release  from  imprisonment,  but  declined  to  make 
any  demand  for  indemnity  on  the  ground  that  the  circumstances 
showed  that  the  Haitian  government  had  good  grounds  for  putting 
him  on  his  trial,  a  jury  on  a  first  verdict  having  been  equally  divided 
as  to  his  guilt. 

'Santangelo  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  3333,  3334;  Duboe 
(France)  v.  The  United  States,  January  15,  1880,  Moore's  Arb.  3319,  3321. 
2  Case  of  Michael  J.  Kouri  v.  Haiti,  For.  Rel.,  1906,  pp.  871-2. 


BKKACII    OF    INTERNATIONAL   LAW  737 

If  complete  innocence  of  a  crime  for  which  a  citizen  had  been  con- 
victed and  imprisoned  were  established,  it  is  probable  that  the  United 
States  would,  if  judicial  or  administrative  machinery  were  at  fault, 
demand  an  indemnity  on  the  ground  of  denial  of  justice,  as  has  been 
done  in  a  few  cases  ^  notwithstanding  the  fact  that  up  to  the  present 
time  the  United  States  fails  to  acknowledge  the  principle  that  in  con- 
\icting  an  innocent  man,  it  has  committed  against  him  a  grievous 
wrong  for  which  the  state  should  indemnify  him.  Most  of  the  European 
countries,  as  has  been  noted,  provide  by  statute  for  the  indemnifica- 
tion by  the  state  of  innocent  persons  erroneously  convicted.^ 

The  citizen  abroad,  therefore,  who  violates  the  local  law  does  not 
sin  away  completely  his  right  to  the  protection  of  his  own  government. 
That  government  will,  in  its  discretion,  take  his  censurable  conduct 
and  the  jurisdictional  rights  of  the  local  state  into  account,  and  will 
exercise  ordinarily  a  protective  surveillance  not  intended  to  exempt 
him  from  a  penalty  properly  incurred,  but  limited  to  securing  for 
him  a  fair  trial  and  customary  treatment. 

BREACH    OF   INTERNATIONAL   LAW 

§  350.  Piracy  and  Slave  Trade. 

Attention  has  already  been  called  to  the  prevailing  theory  that 
international  law,  having  force  among  states  only,  cannot  impose 
duties  upon  individuals.  Hence  many  publicists  would  consider  it 
a  misnomer  to  speak  of  a  breach  of  international  law.  Rehm  is  one 
of  the  very  few,  who,  reasoning  from  the  penalties  imposed  upon  in- 
dividuals for  violations  of  blockades  and  for  carrying  contraband, 
argues  that  international  law  does  bind  individuals  to  some  extent. 
We  are  not  without  some  authority,  therefore,  in  taking  the  position, 
even  in  a  qualified  sense,  that  individuals  may  violate  international 
law. 

The  offenses  against  international  law  which  involve  a  forfeiture 
of  national  protection  may  be  divided  into  two  broad  classes:  first, 
those  which,  while  punishable  by  municipal  law,  are  recognized  as 

*  Supra,  p.  196. 

*  Borchard,  State  indemnity  for  errors  of  criminal  justice,  S.  Doc.  974,  62nd 
Cong.,  3rd  sess.    Wisconsin  and  California  enacted  statutes  to  this  effect  in  1913. 


738  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS    ABROAD 

sufficiently  heinous  in  character  to  have  been  made,  by  convention 
and  practice,  violations  of  international  law  as  well  and  punishable 
by  any  state  having  jurisdiction;  and  secondly,  those  acts  which,  while 
not  punishable  by  municipal  law,  are  admitted  by  all  states  as  being 
subject  to  a  recognized  penalty  on  the  part  of  the  state  aggrieved. 

The  offenses  of  the  first  class  which  have  received  the  most  promi- 
nence in  international  relations  are  piracy  and  the  slave  trade.  The 
commission  of  piracy  is  regarded  as  a  clear  ground  for  the  denial  of 
protection.  A  pirate  has  placed  himself  outside  the  protection  of  any 
law — municipal  or  international.^ 

In  the  early  part  of  the  nineteenth  century  the  nations  of  the  world 
agreed  to  stamp  out  the  slave  trade  by  the  confiscation  of  vessels 
engaged  in  that  obnoxious  enterprise.  By  statute  it  is  now  illegal 
in  practically  all  civilized  countries.  International  arbitral  commis- 
sions to  which  the  United  States  have  been  a  party  have  on  two  oc- 
casions dealt  with  such  cases.  The  first  was  the  case  of  the  brig  Lawrence, 
an  American  vessel  which  put  into  the  British  port  of  Freetown  in 
Africa  and  was  there  seized  and  libelled  on  the  ground  that  she  was 
equipped  for  the  African  slave  trade,  although  her  papers  indicated 
a  general  cargo  for  Havana.  Bates,  the  umpire  of  the  British-American 
commission  of  1853,  held  that  the  owners  of  the  vessel  could  not  claim 
the  protection  of  their  government  because  at  the  time  of  the  condemna- 
tion the  slave  trade  was  prohibited  by  all  civilized  nations  and  hence 
bj^  the  United  States.- 

Similarly,  in  the  Pelletier  case  ^  Secretary  of  State  Bayard  declined 
to  enforce  against  Haiti  an  award  made  by  the  arbitrator  on  the  ground 
that  the  arbitrator  restricted  himself  to  deciding  whether  piracy  by 
the  law  of  nations  as  distinguished  from  the  piracy  of  municipal  law 

1  Piracy,  §§  290,  303-305,  of  the  Federal  Penal  Code  of  1910;  Slave-trade,  §§  24()- 
251  of  the  Penal  Code.  For  cases  on  these  sections,  see  Tucker  ct  Blood's  annotated 
Federal  Penal  Code,  Boston,  1910.  An  international  act  analogous  to  the  General 
Act  of  1891  for  the  suppression  of  the  slave  trade,  is  the  protocol  signed  at  Brussels, 
July  22,  1908,  between  Great  Britain  and  various  other  powers  prohibiting  the  im- 
port,ation  of  firearms,  etc.,  within  a  certain  zone  in  West  Africa.     101  St.  Pap.  176. 

2  Brig  Lauxrence  (U.  S.)  v.  Great  Britain,  Feb.  8,  1853,  Moore's  Arb.  2824-2825. 

'  Pelletier  (U.  S.)  v.  Haiti,  May  24,  1884,  Strong,  arbitrator,  Moore's  Arb.  II, 
1749  el  seq. 


VIOLATION    OF   RIGHTS   OF    BELLIGERENTS  739 

had  been  committed,  whereas  he  should  have  applied  the  Haitian 
law,  which,  like  the  law  of  the  United  States  (R.  S.  5376)  defines  the 
slave  trade  as  piracy.  Pelletier,  having  been  engaged  in  the  slave 
trade,  was  considered  not  entitled  to  protection  and  his  punishment 
having  been  in  no  way  unusual  in  view  of  the  heinous  character  of 
the  offense,  Mr.  Bayard  recommended  that  the  United  States  decline 
to  enforce  the  award  already  made  in  Pelletier's  favor.  ^  Lord  Palmers- 
ton  in  a  letter  to  Mr.  Druey,  president  of  the  Swiss  confederation, 
Oct.  16,  1859,  stated  that  a  British  subject  "may  so  conduct  himself 
either  by  committing  piracy  or  in  other  ways  as  to  forfeit  all  claim 
to  the  protection  of  the  British  Government."  ^ 

§  351.  Violation  of  Rights  of  Belligerents.  Contraband  Carriage, 
Blockade  Running,  etc. 

The  offenses  against  international  law  of  the  second  class,  punishable 
not  by  municipal  law  but  by  the  state  aggrieved  by  the  censurable 
act  are  the  carriage  of  contraband,  blockade  running,  resistance  to 
the  right  of  visit  and  search,  or  similar  violation  of  a  belligerent  right. 
These  acts  are,  of  course,  only  possible  in  time  of  war,  and  the  belligerents 
whose  rights  are  thereby  prejudiced  have  by  international  law  the  right 
to  punish  them.  Neutral  states  are  not  bound  to  prevent  their  sub- 
jects from  engaging  in  the  carriage  of  contraband  or  in  blockade  run- 
ning, and  incur  no  penalty,  moral  or  other.  The  individual,  guilty 
of  the  act,  forfeits  the  protection  of  his  national  government,  and  the 
latter  surrenders  its  subjects  to  the  penalties  prescribed  by  inter- 
national law  and  enforced  by  the  belligerent.  As  a  general  rule,  the 
penalty  is  confiscation  of  the  property  involved  in  the  act. 

The  law  of  prize  consists  largely  of  the  rules  enforced  by  belligerents 
against  neutral  vessels  and  property  violating  belligerent  interests, 
from  which  the  national  governments  of  the  owners  of  the  property 
have  withdrawn  their  protection.  Holland  ^  has  expressed  the  prin- 
ciple as  follows : 

1  For.  Rel.,  1887,  pp.  606-607. 

2  Ibid.,  1873,  II,  1348-1349. 

'  Holland,  Studies  in  International  Law,  Oxford,  1898,  pp.  124-125.  See  the 
British  Neutrality  Proclamation  during  the  Russo-Japanese  War,  censuring  contra- 


740  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

• 

"The  neutral  power  is  under  no  obligation  to  prevent  its  subjects 
from  engaging  in  the  running  of  blockades,  in  shipping  or  carrying 
contraband,  or  in  carrying  troops  or  despatches  for  one  of  the  belliger- 
ents; but,  on  the  other  hand,  neutral  subjects  so  engaged  can  expect  no 
protection  from  their  own  government  against  such  customary  penalties 
as  may  be  imposed  upon  their  conduct  by  the  belligerent  who  is  aggrieved 
by  it.'' 

Presidents  of  the  United  States  have  at  various  times  by  proclamation 
warned  citizens  of  the  United  States  that  by  carrying  contraband 
they  incur  the  penalty  of  confiscation  and  could  not  receive  the  pro- 
tection of  the  United  States.^  We  are  not  concerned  with  the  various 
proclamations  of  presidents,  such  as  the  recent  proclamations  of  Presi- 
dents Taft  and  Wilson  prohibiting  the  exportation  of  arms  into  Mexico, 
by  which  the  obligations  of  neutrals  have  been  increased  in  the  interests 
of  public  policy  and  the  peace  of  contiguous  neighbors.  Violation 
of  such  a  proclamation  would  incur  all  the  penalties  of  a  violation 
of  national  law  together  with  a  forfeiture  of  diplomatic  protection.^ 

The  origin  of  the  word  contraband  {contmbannum)  indicates  its 
unlawful  character.  Sir  Travers  Twiss  has  traced  its  first  use  in  the 
treaty  of  Southampton  between  England  and  the  United  Provinces 
in  1625.3 

We  cannot  enter  here  into  a  complete  discussion  of  the  law  of  con- 
traband.^ Confiscation  of  ship  and  cargo  engaged  in  such  trade  is 
subject  to  various  rules.  There  is  a  difference  between  the  Anglo- 
American  practice  and  the  continental  practice,  although  in  the  Dec- 
laration of  London  (1909)  an  attempt  was  made  to  reconcile  the  diver- 
band  carriage  by  British  subjects,  criticized  in  Holland's  Letters  to  the  Times  upon 
War  and  NeutraUty.    Note  in  26  Juridical  Rev.  (May,  1914),  238. 

•  President  Washington  in  the  NeutraHty  Proclamation,  April  22,  1793,  Am.  St. 
Pap.,  For.  Rel.,  I,  140;  Pres.  Grant  in  the  proclamation  of  August  22,  1870  in  the 
I'Vanco-German  law.  On  the  whole  subject  of  contraband  see  a  recent  article  by 
John  Bassett  Moore,  printed  in  the  Proceedings  of  the. \merican  Philosophical  Society, 
V.  51,  No.  203,  pp.  18-49. 

2  U.  S.  ('.  Chavez,  228  U.  S.  525. 

^  Twiss,  Law  of  Nations,  War,  §  121. 

*  See  Bentwich,  The  Declaration  of  London,  1911;  Westlake,  International  law,  v. 
2,  ch.  10,  Cambridge,  1907;  Oppenheim,  International  law,  v.  2,  pt.  Ill,  ch.  4;  Moore's 
Dig.  VII,  ch.  20.  For  an  extensive  bibliography  on  contraband,  see  Hershey,  Esseu- 
tials  of  International  public  law.  New  York,  1912,  pp.  504-505. 


VIOLATION    OF   RIGHTS    OF    BELLIGERENTS  741 

genciei  while  continuing  tlie  threefold  division  of  Grotius  into  absolute, 
conditional,  and  non-contraband  articles.  The  penalties  prescribed 
by  the  British  Admiralty  Manual  are  as  follows : 

83.  "The  vessel  which  carries  [contraband]  goods,  if  not  owned  by  the 
owner  of  such  goods,  is  not  confiscated  but  forfeits  her  freight  for  such 
goods  and  all  right  to  expeiLses  the  result  of  her  detention. 

85.  "The  penalty  for  carrying  contraband  goods  with  simulated 
])npers,  or  in  disregard  of  express  stipulations  by  treaty,  is  confiscation 
not  only  of  the  contraband  goods  but  also  of  the  vessel,  and  of  anj-^  in- 
terest which  her  owner  has  in  the  rest  of  the  cargo. 

87.  "A  vessel  which  is  herself  contraband  is  liable  to  be  confiscated, 
together  with  such  part  of  her  cargo  as  belongs  to  her  owner." 

The  vessel  is  also  confiscated  if  she  resists  capture  or  search,  or  if 
her  owner  is  privy  to  the  carriage  of  contraband  goods  though  not 
himself  their  owner.  In  Germany  and  Denmark  the  ship  may  be 
confiscated  if  all  her  cargo,  and  in  France  if  three-fourths  of  her  cargo 
is  contraband,  and  according  to  the  Italian  maritime  code  if  any  part 
of  her  cargo  is  confiscable  contraband.^ 

The  Declaration  of  London,  which  was  not  accepted  by  Great 
Britain,  has  been  ratified  by  a  number  of  continental  countries.  Its 
non-acceptance  by  all  the  signatories  has  rendered  it  ineffective  during 
the  European  War,  although  it  is  constantly  invoked  as  the  standard 
of  modern  rules.    It  prescribes  the  following  penalties: 

"Contraband  goods  are  liable  to  condemnation."  (Art.  39.) 

"The  confiscation  of  the  vessel  carrying  contraband  is  allowed, 
if  the  contraband  forms,  reckoned  either  by  value,  by  weight,  by  volume, 
or  by  freight,  more  than  half  the  cargo."    (Art.  40.) 

"Goods  which  belong  to  the  owner  of  the  contraband  and  which 
are  on  board  the  same  vessel  are  liable  to  condemnation."    (Art.  42.) 

The  Supreme  Court  and  the  Court  of  Claims  have  on  several  occa- 
sions dealt  with  the  penalties  of  contraband.  In  the  case  of  the  Brig 
Lucy,^  the  Court  of  Claims  laid  down  the  rule  that  where  the  owners 

1  Westlake,  International  law,  v.  2,  pp.  250-251. 

2  Brig  Lucy  v.  U.  S.,  37  Ct.  CI.  97;  see  also  the  Schooner  Betsy,  39  Ct.  CI.  452  (where 
false  destination  of  goods,  contraband  if  destined  to  belligerent  port,  innocent,  other- 
wise, justified  confiscation);  see  also  Haigh  v.  U.  S.  (The  Bermuda),  3  Wall.  514; 
Carrington  v.  Merchants'  Ins.  Co.,  8  Peters,  495. 


742  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

of  a  vessel  were  the  owners  of  the  cargo,  the  vessel  as  well  as  the  cargo 
was  subject  to  confiscation;  and  where  the  vessel  carrying  contraband 
was  falsely  documented,  or  cleared  for  a  false  destination,  or  was  guilty 
of  fraud,  the  liability  to  confiscation  attended  the  entire  voyage,  that 
is  to  say,  from  the  home  port  back  to  the  home  port  and  to  the  cargo 
on  the  return  voyage,  though  it  might  be  innocent.  If  there  is  no  fraud 
on  the  outward  voyage,  such  as  false  destination,  or  false  papers, 
the  carrying  of  contraband  does  not  affect  the  condition  of  the  vessel 
on  her  return  voyage.^  In  one  case  it  was  held  that  where  a  substantial 
part  of  the  cargo  was  contraband,  the  presumption  was  that  the  whole 
cargo  was  to  aid  a  belligerent  and  justified  a  seizure  of  the  whole. ^ 
Knowledge  on  the  part  of  officers  and  owners  that  contraband  articles 
are  on  board  subjects  the  vessel  itself  to  confiscation.^  A  mere  false 
destination  of  a  vessel,  where  the  cargo  was  innocent  and  the  real 
destination  is  a  non-blockaded,  though  belligerent  port,  does  not 
subject  the  vessel  or  cargo  to  condemnation.'*  Contraband  articles 
contaminate  the  whole  cargo  belonging  to  the  same  owner,  and  all 
his  property  on  board,  contraband  and  non-contraband,  is  subject 
to  confiscation.^ 

The  penalties  of  blockade  running  are  in  many  respects  similar  to 
those  incurred  for  carrying  contraband.  An  incident  of  the  opera- 
tions of  a  siege  is  usually  the  prevention  of  communication  between 
the  besieged  place  and  the  outside  world.  Every  attempt  of  neutrals 
to  cross  the  line  is  an  interference  with  a  belligerent  right  and  is  re- 
pressed bj^  the  besiegers,  without  right  of  complaint  by  the  national 
government  of  the  blockade-runner.^  The  Declaration  of  London 
prescribes  condemnation  of  the  vessel  guilty  of  violation  of  blockade. 
The  cargo  is  also  condemned,  unless  it  is  proven  that  at  the  time  the 
goods  were  shipped  the  shipper  neither  knew  nor  could  have  known 

1  The  Sloop  Ralph,  39  Ct.  CI.  204. 

2  The  Schooner  Atlantic,  37  Ct.  CI.  17. 

3  Ibid.,  39  Ct.  CI.  193. 

■•  Schooner  Betsey  and  Polly  v.  U.  S.,  38  Ct.  CI.  30  (provided  of  couse  she  is  properly 
documented  and  otherwise  carries  the  indicia  of  neutrality). 

^  The  Peterhoff  v.  U.  S.,  5  Wall.  28,  dictum. 

"  Westlake,  op.  cit.,  v.  2,  ch.  IX,  221  et  seq.;  an  extensive  bibliography  on  blockade 
is  to  be  found  in  Hershey,  Essentials  of  international  public  law,  488. 


VIOLATION   OF    RIGHTS   OF    BELLIGERENTS  743 

of  the  intent  to  violate  the  blockade.^  Knowledge  of  the  blockade 
itself  is  an  essential  element  of  the  offense.  Thus,  the  Declaration  pro- 
vides: 

"The  liability  of  a  neutral  vessel  to  capture  for  breach  of  blockade 
is  contingent  on  her  knowledge,  actual  or  presumptive,  of  the  blockade 
made  in  sufficient  time  to  the  Power  to  which  such  port  belongs."    (Art 
15.)  2 

Several  cases  under  the  Abandoned  or  Captured  Property  Act  have 
brought  up  interesting  points  of  law  in  connection  with  the  effect 
of  attempts  to  avoid  capture.  In  a  few  early  cases,  reported  princi- 
pally in  volumes  3  and  4  of  the  Court  of  Claims  Reports,  that  court 
held  that  the  purchase  of  property  in  immediate  danger  of  capture 
as  lawful  booty  was  in  ''fraud  of  the  act"  and  therefore  invalid  and 
such  property  being  subsequently  captured,  the  purchaser  could  not 
recover  the  proceeds  from  the  Treasury. 

In  Klein's  case,  however,^  the  Supreme  Court  decided  that  the 
title  to  captured  property  did  not  pass  to  and  become  indefeasible 
in  the  United  States  by  capture.  The  Court  of  Claims  then,  following 
this  decision,  held  their  previous  decisions  erroneous  to  the  effect 
that  the  purchase  of  cotton  and  other  property  on  the  eve  of  capture 
was  invalid.^ 

Similarly,  the  colorable  transfer  or  fictitious  sale  of  an  American 
vessel  to  the  British  flag  in  order  to  prevent  its  capture  by  confederate 
cruisers  was  held  not  to  operate  as  a  forfeiture  of  United  States  pro- 
tection when  the  vessel  was  nevertheless  captured  by  the  Alabama 
as  an  American  ship  and  as  property  of  American  owners,  because 
either  from  the  invahdity  of  the  fictitious  sale,  or  as  mortgagees  in 
possession,  the  claimant's  property  was  under  the  protection  of  the 
United  States.^ 

1  Declaration  of  London,  art.  21.  See  Higgins,  A.  P.,  The  Hague  Conferences  and 
other  International  Conferences,  Cambridge,  1909,  Renault's  Report  (accompany- 
ing the  Declaration),  582. 

'  Higgins,  op.  cit.,  Renault's  Report,  578.  On  the  Anglo-American  doctrine  of 
constructive  knowledge  see  the  Neptunus  (1799),  2  C.  Rob.  110. 

'  Klein  v.  The  United  States,  13  Wall.  128,  7  Ct.  CI.  240. 

*  Fernandez  v.  The  United  States,  7  Ct.  CI.  541. 

*  Pike  and  Stephens  et  aX.  (case  of  the  Texan  Star)  v.  The  United  States,  Act  of 
June  23,  1874,  distribution  of  Geneva  Award,  Moore's  Arb.  2379. 


744  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

The  Supreme  Court,  however,  in  the  case  of  the  Benito  Estenger  ^ 
held  that  the  colorable  transfer  of  a  ship  from  a  belligerent  to  a  neutral 
to  avoid  capture  does  not  relieve  her  from  condemnation  as  prize. 
Likewise,  the  assertion  of  a  false  claim  by  an  agent  with  or  without 
the  connivance  of  the  real  owner  is  a  substantive  cause  for  condemna- 
tion.^ Forfeiture  to  the  federal  government  similarly  occurs  under 
the  Act  of  Congress  of  Dec.  31,  1792,  where  a  vessel  sails  under  a  regis- 
ter obtained  by  false  swearing  as  to  the  domicil  of  the  owners.^ 

The  Declaration  of  London  provides  (Art.  55)  that  the  transfer 
of  an  enemy  vessel  to  a  neutral  flag,  effected  before  the  opening  of 
hostilities,  is  valid,  unless  it  is  proved  that  such  transfer  was  made 
in  order  to  evade  the  consequences  which  the  enemy  character  of  the 
vessel  would  involve.  There  is,  however,  a  presumption  that  such 
transfer  is  void  if  the  bill  of  sale  is  not  on  board  a  vessel  which  has 
lost  her  belligerent  nationality^  less  than  sixty  days  before  the  opening 
of  hostilities.    Proof  to  the  contrary  is  admitted. 

"There  is  absolute  presumption  of  the  validuty  of  a  transfer  effected 
more  than  thirty  days  before  the  opening  of  hostilities  if  it  is  absolute, 
complete,  and  conforms  to  the  laws  of  the  countries  concerned,  and  if 
its  effect  is  such  that  the  control  of  the  vessel  and  the  profits  arising  from 
her  employment  do  not  remain  in  the  same  hands  as  before  the  transfer. 
If,  however,  the  vessel  lost  her  belligerent  nationality  less  than  sixty 
days  before  the  opening  of  hostilities,  and  if  the  bill  of  sale  is  not  on 
board,  the  capture  of  the  vessel  would  give  no  right  to  damages."  * 

Resistance  to  legitimate  visit  and  search  constitutes  a  good  ground 
for  condemnation  of  a  neutral  vessel,  and  operates  as  a  forfeiture  of 
national  protection.    The  Declaration  of  London  provides  (Art.  63) : 

"Forcible  resistance  to  the  legitimate  exercise  of  the  right  of  stoppage, 
visit  and  search,  and  capture  involves  in  all  cases  the  condemnation 

^  The  Benito  Eslenger,  176  U.  S.  568;  see  also  Hall  on  transfer  of  vessels  flagrante 
hello  (4th  edition),  p.  525.  While  not  generally  illegal,  a  sale  during  war  is  in  itself 
a  susi)icious  circumstance,  and  if  not  a  bona  fide  sale  it  will  not  be  a  defense  against 
capture;  see  also  the  Sechs  Geschwidern,  4  C.  Rob.  100;  The  Enibden,  I  C  Rob.  20; 
The  Jemmy,  4  C.  Rob.  31;  in  France,  such  sale  after  outbreak  of  war  is  illegal.  See 
supra,  pp.  255,  483. 

^  The  Amiable  Isabella,  6  Wheat.  1. 

3  The  Venus,  8  Cranch,  253. 

*  Oppcnheim,  op.  cil.,  v.  2,  p.  656;  Higgins,  Report,  p.  600  et  seq.;  Bentwich,  Declarac 
tion  of  London,  1911,  pp.  104  el  seq. 


BREACH    OF   NATIONAL    LAW  745 

of  the  vessel.  The  cargo  is  liable  to  the  same  treatment  which  the  cargo 
of  an  enemy  vessel  would  undergo.  Goods  belonging  to  the  master  or 
owner  of  the  vessel  are  regarded  as  enemy  goods." 

The  Supreme  Court  and  the  Court  of  Claims  have  had  frequent 
occasion  to  visit  this  effect  upon  a  resistance  to  the  right  of  search.^ 
A  neutral  vessel  is,  however,  justified  in  defending  h(;rself  against 
extreme  violence  threatened  by  a  cruiser  abusing  its  commission. 
The  rule  is  not  modified  by  the  apprehension  of  illegal  condemnation 
on  the  part  of  the  neutral  or  by  the  Act  of  June  25,  1798  which  author- 
izes American  merchant  vessels  to  carry  arms  for  protection  against 
French  spoliation.-  In  the  case  of  the  Schooner  Jane  ^  the  Court 
of  Claims  held  that  it  could  not  differentiate  degrees  of  resistance 
which  would  render  a  vessel  liable  or  not  liable  to  condemnation  for 
resisting  visit  and  search. 

BREACH    OF   NATIONAL   LAW 

§  352.  When  Protection  Forfeited. 

It  has  been  observed  that  the  relation  between  the  state  and  its 
citizen  is  fixed  by  its  own  municipal  law,  and  that  the  citizen  abroad 
remains  to  some  extent  subject  to  the  prescriptions  of  his  national 
law.  Yet  the  principle  of  territoriality  operates  to  deprive  the  in- 
junctions and  duties  imposed  upon  the  citizen  of  their  coercive  force 
at  the  frontiers  of  the  state.  The  municipal  law  cannot  be  enforced 
abroad.  The  state  does,  however,  retain  a  definite  sanction  over 
violations  of  its  municipal  law  by  the  citizen  abroad,  the  principal 
penalty  being  the  loss  of  protection  and  sometimes  even  the  loss  of 
nationality,  with  civil  and  political  rights.^ 

1  The  attempt  to  elude  visit  and  search  forfeits  neutral  protection.  Malej'  v. 
Shattuck,  3  Cranch,  488;  The  Baigornj,  2  Wall.  481. 

2  The  Ship  Rose,  36  Ct.  CI.  291;  The  Ship  Amazon,  36  Ct.  CI.  378;  The  Schooner 
Jarie,  37  Ct.  CI.  24.    See  also  Schooner  Baigorry  v.  The  United  States,  2  Wall.  474. 

3  37  Ct.  CI.  24. 

*  Article  17,  §  3  of  the  French  Civil  Code  and  German  law  of  Juh'  1,  1870,  article  22, 
prescribe  loss  of  citizenship  for  the  retention  by  a  citizen  of  a  foreign  public  office 
after  a  request  by  his  country  to  resign  it,  although  in  Germany,  the  deprivation 
is  optional  with  the  state.  This  principle  is  retained  in  the  law  of  July  22,  1913. 
France,  article  17,  §  4,  amended  by  the  law  of  June  26,  1889,  and  Hungary,  law  of 
Dec.  20,  1879,  article  50  (Ann.  de  L6g.  Etr.,  1880,  p.  351)  prescribe  the  loss  of  citizen- 


746  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

It  is,  in  fact,  a  general  principle  of  municipal  law  of  all  nations  that 
by  a  disregard  or  violation  of  his  national  law,  the  citizen  assumes 
all  the  consequences  of  his  act  and  forfeits  the  protection  to  which 
normally  he  might  have  been  entitled.  Thus,  it  has  been  observed 
that  claims  arising  out  of  contracts  for  services  to  lobby  and  to  influence 
Congressional  action,  transactions  obnoxious  to  the  laws  of  the  United 
States,  have  been  denied  diplomatic  support.^  So,  as  will  be  seen, 
violation  of  the  country's  neutrality,  engaging  in  prohibited  trade, 
or  the  violation  of  an  embargo  establishing  non-intercourse,^  involve 
the  loss  of  the  citizen's  right  to  national  protection. 

Contracts  concluded  between  individuals  in  violation  of  the  law 
of  the  United  States,  though  valid  at  the  place  of  performance,  and, 
it  would  seem,  even  where  made,  will  not  be  enforced  in  the  courts 
of  the  United  States.^ 

§  353.  Waiver  of  Forfeiture  by  National  Government. 

While  international  commissions  have  at  times  deprived  a  citizen 
of  his  standing  before  the  commission  for  having  violated  his  national 
law,  the  decision  as  to  whether  and  to  what  extent  the  citizen  shall 

ship  by  the  taking  of  military  service  abroad.  See  criticism  of  Von  Bar,  op.  cit.,  §  59. 
By  the  law  of  Germany  (law  of  July  1,  1870,  art.  20)  failure  to  heed  the  jus  avocandi 
in  time  of  war  involves  a  loss  of  national  protection,  a  provision  retained  in  the  law 
of  July  22,  1913.  A  Costa  Rican's  acceptance  of  foreign  titles  or  decorations,  except 
university  or  philanthropic,  involves  a  similar  penalty  (Law  of  Dec.  20,  1886,  art.  4, 
Ann.  de  Leg.  Etr.,  1887,  p.  869). 

'  Supra,  p.  717. 

-  Brannan  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2757-2758;  Dennison 
(U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  2766-2767.  Medea  and  Good  Return 
(U.  S.)  V.  Ecuador,  Nov.  26,  1862,  Moore's  Arb.  2738  (engaging  in  privateering). 
See  Act  of  February  28,  1806,  Act  of  Dec.  22,  1807,  and  Act  of  March  1,  1809  (the 
non-intercourse  and  embargo  acts),  for  a  violation  of  which  the  commissioners  under 
u  convention  with  France  of  July  4,  1831,  deprived  the  claimants  of  the  right  to 
national  protection.  Kane,  J.  K.,  Notes  on  some  of  the  questions  decided  by  the 
board  of  commissioners  under  the  convention  with  France,  Phila.,  1836,  pp.  19-20; 
also  in  Moore's  Arb.  4472.  Thos.  Marin  (Mex.)  v.  U.  S.,  No.  751,  July  4,  1868,  MS. 
Op.  VI,  161-162  (Mexico  had  declared  certain  vessels  pirates,  and  had  requested 
U.  S.  to  arrest  them;  held  Mexico  is  estopped  from  claiming  indemnity).  English 
Roman-Catholic  Colleges  in  France  v.  The  Award  of  the  Commissioners  for  Liquidat- 
ing British  Claims  on  France,  2  Knapp's  Rep.  23  (corporation  existing  in  France 
for  objects  in  opposition  to  British  law). 

»  Kennett  el  al.  v.  Chambers,  14  Howard,  38-39. 


wAUKR   OF    FORFEITURE    BY    NATIONAL   CiOVERNMENT  747 

by  such  breacli  of  his  national  law  be  deprived  of  his  right  to  protec- 
tion lies  with  his  own  government  and  not  with  the  foreign  govern- 
ment. So,  a  disregard  of  his  national  laws  by  an  American  citizen 
was  held  to  furnish  no  warrant  to  France  for  a  spoliation  of  his  prop- 
erty.^ Limited  protection  has  at  times  been  extended  by  the  United 
States  to  violators  of  its  law  abroad,  as  in  the  case  of  the  Zerman  ex- 
pedition {infra,  p.  762)  where,  in  spite  of  the  unlawful  character  of 
the  expedition  against  Mexico,  the  United  States  insisted  and  Thorn- 
ton, umpire,  upheld  the  contention  that  the  United  States  had  a  right 
to  demand  that  their  citizens,  accused  of  crimes  abroad,  should  re- 
ceive a  fair  trial  and  reasonable  treatment  at  the  hands  of  the  author- 
ities.^ In  the  case  of  Commodore  Danels,  who  had  accepted  a  privateer- 
ing commission  from  Uruguay  against  Spain  in  violation  of  the  United 
States  laws  and  treaties,  the  good  offices  of  the  United  States  were 
used  to  secure  his  release  from  detention.^ 

The  violation  of  national  law  may,  in  a  case  involving  diplomatic 
protection,  be  entirely  waived  by  the  country  to  which  an  injured 
citizen  belongs.  Thus  in  several  cases  before  the  French-United  States 
Commission  of  January  15,  1880,"*  it  was  argued  and  held  that  France 
may  extend  its  protection  to  Frenchmen  residing  abroad  in  spite  of 
their  violation  of  a  decree  of  France  of  April  27  (1848)  prohibiting 
the  ownership  of  slaves.  In  the  case  of  Lake,  before  the  Mexican 
commission  of  1868,^  Wadsworth,  American  Commissioner,  in  a  dictum, 
expressed  the  opinion  that  where,  by  taking  military  service  abroad 
a  citizen  has  violated  his  national  law,  the  presentation  and  support 
by  his  government  of  his  claim  against  the  government  to  whom  the 
services  were  rendered,  raises  the  presumption  that  his  government 
had  waived  the  violation  of  its  laws. 

1  Commission  of  July  4,  1831,  Kane's  Notes,  p.  20.  See,  however,  English  Roman- 
Catholic  Colleges  in  France  v.  Award  of  the  Commissioners,  2  Knapp's  Rep.  23. 

2  Dennison  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2767. 

^  Instructions  of  Mr.  Buchanan,  Sec'y  of  State,  to  U.  S.  Consul  in  Venezuela, 
footnote  in  Moore's  Arb.  2737. 

^  Motte  (Fr.)  v.  U.  S.,  Moore's  Arb.  2574-2578,  and  cases  of  Nougu6,  No.  323 
(Aldis,  commissioner,  dissenting),  Laureal,  No.  97,  and  Ladmirault,  No.  475,  cited 
in  Moore's  Arb.  2578.  The  decree  went  further  and  even  prescribed  a  loss  of  "the 
quality  of  a  French  citizen." 

5  Lake  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  .Arb.  2754. 


748  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS    ABROAD 

The  violations  of  national  law  which  will  involve  a  complete  or 
partial  forfeiture  of  national  protection  are  so  varied  that  it  seems 
most  convenient  to  discuss  them  in  classes.  We  shall  treat  of  these 
violations,  therefore,  under  the  heads  of  unlawful  trade,  and  unneutral 
conduct  and  unfriendly  act,  with  their  main  subdivisions,  privateering, 
unlawful  expeditions,  unneutral  military  service,  and  unneutral  aid 
and  comfort  to  a  belligerent. 

UNLAWFUL  TRADE 

§  354.  Trading  with  the  Enemy. 

A  state  of  war  interdicts  commercial  intercourse  between  enemies. 
By  British  and  American  law  the  doctrine  is  upheld  that  all  trading 
between  subjects  of  enemj^  states  is  ipso  facto  prohibited  by  the  out- 
break of  the  war,  unless  permitted  under  a  custom  of  war,  such  as 
the  case  of  commercia  belli,  e.  g.,  ransom  bills,  or  allowed  under  special 
licenses.  In  other  words,  trading  between  enemies  is  unlawful  unless 
expressly  permitted.  The  converse  of  this  doctrine  to  the  effect  that 
trading  between  enemy  subjects  is  lawful  unless  prohibited  by  a  special 
order,  is  upheld  by  several  other  countries,  for  example,  Austria- 
Hungary,  Germany,  Holland  and  Italy.  The  carriage  of  contraband 
naturally  does  not  come  within  this  rule. 

The  Anglo-American  rule  finds  early  support  in  the  doctrine  of 
Bynkershoek,^  and  has  been  maintained  by  the  courts  ever  since. 
The  rule  of  the  freedom  of  trade  is,  however,  constantly  gaining  ground 
and  under  modern  conditions,  unless  incompatible  with  military  opera- 
tions, seems  by  far  the  more  reasonable  rule.- 

Reference  has  already  been  made  to  the  rules  governing  contractual 
relations  entered  into  between  subjects  of  enemy  states  prior  to  or 
during  war.^ 

'  The  Anglo-American  view  is  firmly  supported  by  the  courts,  and  there  does  not 
appear  any  likelihood  of  a  change  to  more  reasonable  rules.  Scott,  Leslie,  Trading 
with  the  enemy,  2nd  ed.,  London,  1914  (includes  the  British  Acts  and  Orders  in 
Council  to  October  29,  1914);  The  Hoop  (1799),  1  Rob.  190  (Great  Britain),  ami 
The  Rapid  (1814),  8  Cranch,  156  (U.  S.),  are  the  leading  cases;  B^'nkershoek,  Quaes- 
tiones  Jur.  Put).,  liv.  1,  ch.  9  and  15. 

'  The  more  liberal  view  is  supported  by  the  majority  of  modern  publicists.  See 
authorities  cited  in  Hershey,  Essentials  of  international  public  law,  367,  footnote. 

^  Supra,  §  46. 


UNLAWFUL   TRADE  749 

The  rules  governing  trading  with  the  enemy  are  matters  of  municipal 
law.  In  countries  which  regard  such  trade  as  lawful,  unless  specially 
prohibited,  the  municipal  courts  determine  for  themselves  the  legal- 
ity or  illegality  of  a  contract  of  their  subject.  Thus,  Westlake  cites 
the  case  of  the  Prussian  banker,  Guterbock,  who  during  the  Franco- 
Prussian  war  participated  in  the  Morgan  loan  to  France.  The  Prussian 
criminal  court  held  the  loan  not  only  illegal  but  treasonable.  Contracts 
made  in  the  Confederate  States  for  assisting  the  war  against  the  United 
States  were  unenforceable  either  in  the  courts  of  the  Confederate 
States  at  the  end  of  the  war,  or  in  the  Union  States.^  The  subject 
of  enemy  trading  has  come  up  frequently  before  prize  courts  and  mu- 
nicipal courts,  and  in  Great  Britain  and  the  United  States  the  law  may 
be  regarded  as  settled.^  It  will  probably  be  impossible  to  overcome 
the  effect  of  these  time-honored  decisions,  and  so  arrive  at  a  more 
enlightened  rule  and  practice. 

The  confiscation  of  the  property  of  enemies  and  neutrals  engaged 
in  unlawful  trade  is  subject  to  most  complicated  rules.  We  shall 
here  only  briefly  touch  upon  those  in  which  the  conduct  or  status 
of  the  individual  constitutes  an  important  factor  in  determining  the 
legality  of  confiscation.  The  Anglo-American  rule  of  trade  domicil 
which  fixes  the  national  character  of  commercial  enterprises  by  the 
domicil  of  the  vessel  or  cargo  owner  has  been  applied  in  determining 
the  confiscability  of  the  property  of  American  citizens  and  British 
subjects.  Thus,  a  British  subject  resident  in  a  neutral  country,  it 
has  been  decided,  may  engage  in  trade  with  the  enemy  of  his  own  coun- 
try, but  not  in  articles  of  a  contraband  nature,  the  duties  of  allegiance 
traveling  with  him  so  as  to  restrain  him  to  that  extent.^ 

*  Cases  cited  in  Scott's  Cases  of  international  law,  517  et  seq.,  particularly  Wear  v. 
Jones,  61  Ala.  288;  Oppenheim,  International  law,  London,  1913,  II,  135  et  seq.; 
Westlake,  International  law,  Cambridge,  1907,  II,  44  et  seq.;  Hall,  International 
law,  6th  ed.,  Oxford,  1909,  p.  385. 

'  Moore's  Dig.  VII,  391-395,  cites  a  long  list  of  cases  in  the  U.  S.  Sup.  Ct.  and  other 
authoritative  opinions. 

'  The  Neptunus,  5  Rob.  409;  The  Emanuel,  1  Rob.  302;  The  Ann,  1  Dodson,  223; 
Bell  V.  Reid  and  Bell  v.  Buller,  1  M.  &  S.,  726;  Marryatt  v.  Wilson,  1  B.  &  P.  430. 
See  the  modifications  inaugurated  by  the  recent  British  Trading  with  the  Enemy  Act 
printed  in  Scott,  Leslie,  Trading  with  the  enemy  (London,  1914),  and  in  the  works  by 
Schuster  and  Page,  supra,  p.  110. 


750  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

The  British  courts  have  held  that  commerce  by  a  person  resident 
in  the  enemy's  country,  even  as  representative  of  the  Crown  of  England, 
is  illegal  and  the  subject  of  prize,  however  beneficial  to  his  country, 
unless  authorized  by  license;  ^  but  the  suppl}^  of  articles  for  use  of  the 
British  fleet  was  held  to  be  an  exception  to  the  rule.^  If  a  British 
subject  employ  a  neutral  to  trade  for  him  in  the  country  of  the  enemy, 
the  neutral  is  considered  to  be  a  mere  agent  and  the  transaction  is 
illegal.^ 

The  outbreak  of  a  war  usually  finds  some  subjects  of  each  of  the 
enemy  states  resident  in  the  territory  of  the  other  belligerent.  It  is 
a  general  rule  that  they  should  be  given  a  reasonable  time  to  withdraw 
their  persons  and  property  from  the  belligerent  soil.  The  question, 
however,  whether  the  transaction  of  withdrawal  of  their  property 
and  its  importation  into  their  own  country  is  not  in  itself  an  unlawful 
commercial  transaction  has  created  much  discussion. 

Referring  to  the  view  of  Vattel  and  other  publicists  to  the  effect 
that  it  seems  only  just  that  persons  so  situated  should  have  a  reason- 
able time  to  withdraw  their  persons  and  property  and  should  not  be 
treated  as  enemies,  Duer,  the  eminent  writer  on  insurance,  says : 

"It  seems  a  necessary  deduction  from  these  views,  that,  in  the  judg- 
ment of  these  writers,  the  property  of  persons  withdraw^ing  themselves 
from  the  enemy's  country  would,  in  the  course  of  transportation,  be 
entitled  to  the  protection  of  their  own  government;  since,  otherwise, 
the  very  object  of  the  lenity  exercised  toward  them  might  be  defeated 
and  that  which  was  granted  as  a  favor  would  be  converted  into  a  snare. 
To  confiscate  the  property  of  subjects,  in  the  act  of  returning  to  their 
allegiance,  is  the  extreme  of  injustice,  as  well  as  of  impolicy.  It  is  to 
punish  those  whom  their  country  should  desire  to  reward."  * 

A  distinction  is  made  between  a  citizen  merely  resident  and  one 
domiciled  in  a  belligerent  state.     In  the  latter  case,  that  of  domicil, 

»  Ex  parte  Baylehole,  18  Ves.  jun.  538;  1  Rose,  271. 

2  The  Mculonua  (telle  Grade,  4  Rob.  195. 

'  The  Samuel,  4  Rob.  284.  For  cases  concerning  the  unlawfulness  of  various  deal- 
ings with  residents  of  the  Confederate  States  during  the  American  civil  war,  see 
the  Reform,  3  Wall  617;  U.  S.  v.  Weed,  5  Wall.  62;  The  Gray  Jacket,  5  Wall.  342; 
The  Hampton,  5  Wall.  372;  The  Sea  Lion,  5  Wall.  630;  and  numerous  cases  in  volumes 
2  and  3  of  the  Court  of  Claims  Reports. 

*  Duer,  Insurance,  I,  561-563;  Vattel,  Droit  des  gens,  liv.  II,  chap.  18,  §  344; 
Uv.  Ill,  chap.  4,  §  63;  chap.  5,  §§  73-75. 


UNLAWFUL  TRADE  751 

his  property  involved  in  war  with  his  own  country  may  be  condemned 
as  enemy  property;  if  merely  resident,  the  attempt  to  withdraw  may 
be  similarly  penalized,  but  only  on  the  ground  of  unlawful  trade  with 
the  enemy.  ^ 

The  question  has  been  raised  whether  the  withdrawal  of  property 
from  an  enemy  country  for  the  purpose  of  bringing  it  to  his  own  country 
by  a  citizen  resident  in  the  latter  requires  a  governmental  license 
to  relieve  it  from  the  implication  of  voluntary  unlawful  trading.  Duer 
beheves  that 

"the  property  of  subjects  withdrawing  themselves  in  good  faith  from 
a  hostile  country  within  a  reasonable  time  after  knowledge  of  the  war,  is 
not  stamped  with  the  illegal  character  of  a  trading  with  the  enemy; 
but  it  is  to  be  considered,  by  a  just  exception  from  the  general  rule,  as 
exempt  from  confiscation."  2 

The  United  States  Supreme  Court  has  not  passed  squarely  on  the 
question  whether  such  withdrawal  of  property  from  enemy  territory 
within  a  reasonable  time  after  the  outbreak  of  war  constitutes  unlawful 
trading.  The  dicta  of  Justice  Storj'  in  the  cases  of  the  Rapid  and  the 
Mary  ^  in  the  Circuit  Court,  might  lead  to  the  conclusion  that  he 
considered  such  withdrawal  unlawful  trading.  The  New  York  Su- 
preme Court  expressed  the  opinion  that  a  subject  of  one  belligerent 
may  withdraw  his  property  from  the  territory  of  the  other  belligerent, 
provided  it  is  done  within  a  reasonable  time  after  knowledge  of  the 
war  and  does  not  involve  going  to  the  enemy's  country  for  that  pur- 
pose. The  judge  rendering  the  opinion  added  that  he  thought  if  the 
question  came  before  the  United  States  Supreme  Court  such  a  trans- 
action would  be  considered  as  not  coming  within  the  policy  of  the 
rule  which  renders  all  trading  or  intercourse  with  the  enemy  illegal.'* 

Certain  British  admiralty  cases  have  laid  down  an  exception  to  the 
rule  which  confiscates  all  goods  imported  from  the  enemy's  country 
during  the  war.     This  exception  covers  the  case  of  goods  purchased 

'  See  \Mieaton'8  Elements  of  international  law,  Part  4,  Chap.  I,  §  17;  The  Venus, 
8  Cranch,  253. 

*  Duer,  Insurance,  I,  564-565. 

'  The  Rapid,  1  Gall.  295;  The  Mary,  1  Gall.  620. 

*  Amory  v.  McGregor,  15  Johns.  24;  see  also  Attorney  General  Rush,  1  Op.  Atty. 
Gen.  175. 


752  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

under  an  order  given  prior  to  the  cominenceiiient  of  hostilities,  where 
it  was  not  in  the  power  of  the  owner,  by  any  diHgence,  to  countermand 
the  order  in  time  to  prevent  the  shipment.^ 

The  good  faith  or  mistake  of  the  party  thus  withdrawing  his  prop- 
erty affords  no  protection  to  the  vessel  or  goods  engaged  in  illegal 
trade  with  an  enemy  subject.  This  was  expressly  determined  by 
Lord  Stowell  in  the  leading  case  of  the  Hoop,  and  the  rule  has  since 
been  adhered  to.^ 

§  355.  Prohibition  upon  Neutral  Vessels.     Decisions  of  International 
Tribunals. 

Neutral  vessels  are  equally  bound  with  those  belonging  to  subjects 
of  the  enemies  to  refrain  from  a  trade  between  enemy  ports.  Cases 
of  this  kind  have  frequently  come  before  international  tribunals  for 
adjudication.  In  one  of  the  most  important  of  these  cases,^  an  American 
vessel  during  the  war  between  Spain  and  Mexico  sailed  from  Havana, 
then  a  Spanish  port,  to  New  Orleans,  there  shipping  additional  cargo, 
and  then  proceeded  to  a  port  in  Mexico.  So  far  as  the  vessel  and  the 
Spanish  cargo  were  concerned,  this  was  held  to  be  an  unlawful  trade 
and  operated  as  a  forfeiture  of  the  vessel's  neutral  character,  giving 
Mexico,  a  belligerent,  the  right  to  prescribe  the  penalties  which  the 
neutral  vessel  was  to  incur. 

Various  cases  of  unlawful  intercourse  and  illicit  trade  occurred 
during  the  French  occupation  of  Mexico,  in  which  the  property  of 
American  citizens  domiciled  in  Mexico  was  confiscated  by  Mexican 
authorities  while  proceeding  from  a  place  occupied  by  the  French 

1  Juffrow  Catharina,  5  Rob.  141;  The  Fortuna,  1  Rob.  211;  The  Freeden,  1  Rob.  212. 

2  The  Hoop,  1  Rob.  196;  The  Franklin,  6  Rob.  127;  Scolefield  v.  Eichelberger, 
7  Pet.  586.  The  whole  subject  of  trading  with  the  enemy  is  discussed  in  Halleck  on 
International  Law,  4th  ed.,  ch.  23,  II,  143  et  seq.,  from  which  much  of  the  material 
of  the  last  few  paragraphs  has  been  taken. 

'  The  Felix  (U.  S.)  v.  Mexico,  Domestic  Commission  under  act  of  Congress, 
March  3, 1849,  Moore's  Arb.  2800-2815;  The  Isaac  McKim  (U.  S.)  i>.  Me.xico,  Moore's 
Arb.  281.5-2816;  Frear,  Cuculla  el  al.  (U.  S.)  v.  Mexico,  Moore's  Arb.  281&-2816. 
As  cases  in  support  the  commissioners,  Evans,  Smith  and  Paine,  cite  the  case  of  the 
Hoop,  Robinson's  Admiralty  Rep.  (1799),  I,  298  and  Potts  v.  Bell,  8  Term  Rep. 
(1800),  548.  See  also  Schooner  Baigorrij,  Renaud,  Claimant,  v.  U.  S.,  2  Wall.  474. 
On  the  general  subject,  see  Halleck,  International  law,  II,  143  et  seq. 


LICENSES  753 

either  to  another  place  in  Mexico  or  destined  for  foreign  shipment, 
a  trade  prohibited  by  Mexico.^ 

The  violation  of  the  embargo  and  non-intercourse  acts  of  the  United 
States  of  1806,  1807  and  1809  was  held,  by  the  commission  under 
the  treaty  with  France  of  July  4,  1831,  to  deprive  the  guilty  vessel 
of  her  right  to  national  protection. - 

During  the  war  between  Texas  and  Mexico,  American  citizens 
attempted  to  introduce  goods  into  Mexico  from  Texas  against  the 
Mexican  prohibition.  They  claimed  that  they  were  unaware  until 
almost  at  their  destination  that  a  war  was  in  existence,^  but  the  com- 
mission, in  disallowing  the  claim  against  Mexico  for  a  seizure  of  the 
goods,  held  that  the  existence  of  the  war  at  the  time  of  shipment  was 
well  known  and  that  the  claimants  had  had  time  to  remove  their 
property. 

In  these  cases  protection  was  forfeited  not  because  of  the  mere 
carriage  of  goods  belonging  to  the  enemy,  but  because  of  their  carriage 
from  or  to  ports  or  places,  intercourse  between  which  was  prohibited. 
As  has  been  observed,  the  neutral  flag  does  not  cover  an  illicit  trade 
forbidden  to  enemies. 

§  356.  Licenses. 

Mention  has  been  made  of  the  exception  from  the  penalty  of  con- 
fiscation of  a  trade  carried  on  under  the  license  or  protection  of  one 
of  the  enemies.    Halleck  "*  defines  a  license  as  follows: 

"A  license  is  a  kind  of  safe  conduct  granted  by  a  belligerent  state  to 
its  own  subjects,  to  those  of  its  enemy,  or  to  neutrals,  to  carry  on  a 
trade  which  is  interdicted  by  the  laws  of  war,  and  it  operates  as  a  dis- 
pensation from  the  penalty  of  those  laws,  with  respect  to  the  state 

1  Schleining  and  Pentenreider  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2818; 
Jaroslowsky  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.,  p.  2818,  MSS.  Op.  VI. 
p.  65;  Scott  (U.  S.)  v.  Mexico  (traffic  between  two  points  occupied  by  the  French  in 
Mexico),  Moore's  Arb.  2817. 

-  Kane's  Notes  on  some  of  the  questions  decided  by  the  board  of  commissioners 
under  the  convention  with  France  of  July  4,  1831,  Phila.,  1836,  p.  20,  Moore's  Arb. 
2807-2808,  4472. 

'  Forbes  and  Parker  (U.  S.)  v.  Mexico,  Domestic  Commission  of  March  3,  1849, 
Moore's  Arb.  2666. 

*  Halleck,  International  law,  4th  ed.,  II,  371. 


754  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

granting  it,  and  so  far  as  its  terms  can  be  fairly  construed  to  extend. 
The  officers  and  tribunals  of  the  state  under  whose  authority  they  are 
issued,  are  bound  to  respect  such  documents  as  lawful  relaxations  of  the 
ordinary  state  of  war;  but  the  adverse  belligerent  may  justly  consider 
them  as  per  se  a  ground  of  capture  and  confiscation." 

Several  cases  have  come  before  international  commissions  in  which 
the  acceptance  by  a  neutral  of  an  enemy  license  or  the  carrying  on 
of  trade  under  the  protection  of  one  belligerent  was  regarded  as  suffi- 
cient reason  for  the  confiscation  of  the  property  involved  by  the  other 
belligerent.^ 

The  Supreme  Court  has  held  that  a  vessel  and  cargo  liable  to  capture 
for  saiUng  under  a  pass  or  license  of  the  enemy,  or  for  trading  with  the 
enemy,  may  be  seized  after  the  vessel's  arrival  in  a  port  of  the  United 
States  and  condemned  as  prize  of  war.  The  fault  is  not  purged  by 
the  termination  of  the  voyage.^ 

§  357.  Special  Cases  of  Intercourse  with  Enemies, 

The  carrying  of  a  petition  to  the  commander  of  the  French  Imperial 
forces,  then  at  war  against  Mexico,  requesting  the  release  of  a  certain 
prisoner,  was  held  not  to  be  such  an  illicit  intercourse  as  warrants 
a  fine  by  Mexican  authorities  for  violating  the  laws  of  war  and  bearing 
communications  to  the  enemy.^ 

In  the  case  of  the  Felix,  the  property  of  an  American  citizen  taken 
on  board  at  New  Orleans  was  held  not  subject  to  confiscation,  although 
the  vessel  had  come  with  some  Spanish  cargo  from  Havana  and  pro- 
ceeded, after  taking  this  additional  cargo  at  New  Orleans,  to  a  Mexican 
port,  being  subsequently  captured  on  the  way.^ 

While  the  establishment  of  a  blockade  renders  any  attempt  to  break 


» Biencourt  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2818-2819  (property 
of  an  American  citizen  domiciled  in  Mexico  seized  by  Mexico  while  under  French 
military  escort);  Torre  and  Labordette  (U.  S.)  t».  Mexico,  July  4,  1868,  Moore's 
Arb.  2816;  Scott  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2817. 

^  The  Caledonian,  4  Wheat.  100;  see  also  Castro  (U.  S.)  v.  Mexico,  July  4,  1868, 
Moore's  Arb.  2816. 

'  Johnson  (U.  S.)  v.  Mex.,  July  4,  1868,  Moore's  Arb.  2817. 

*  The  Felix  (U.  S.)  v.  Mexico,  Domestic  Commission  of  Mar.  3, 1849,  Moore's  Aib^ 
281,5. 


UNNEUTRAL   CONDUCT   AND    UNFRIENDLY   ACT  755 

it,  either  by  belligerents  or  neutrals,  a  just  cause  for  condemnation, 
an  anticipated  blockade  of  the  ports  of  one  belligerent  by  the  forces 
of  the  other  does  not  interfere  with  the  freedom  of  neutral  commerce, 
for,  said  Pinkney,  American  Commissioner  in  the  Commission  under 
the  Jay  Treaty  ^  "there  cannot  be  a  constructive  blockade  to  the 
prejudice  of  the  trade  with  neutrals"  and,  added  Trumbull  in  the 
same  case,^ 

''it  is  lawful  for  a  citizen  of  the  United  States  during  the  war  between 
Great  Britain  and  France  to  carry  on  a  trade  in  provisions  between  the 
United  States  and  French  possessions  in  the  West  Indies,  for  this  is 
neither  inconsistent  with  the  law  of  nations  nor  with  the  duties  of  neu- 
trality." 

The  Court  of  Claims  has  in  a  number  of  cases  had  to  decide  whether 
certain  transactions  carried  on  by  individuals  in  the  confederate  states 
with  aliens,  or  with  American  citizens,  were  unlawful  under  the  non- 
intercourse  act,  or  the  abandoned  and  captured  property  act.' 

UNNEUTRAL   CONDUCT   AND    UNFRIENDLY   ACT 

§  358.  Breach  of  Neutrality. 

The  breach  of  neutrality  constitutes  one  of  the  largest  classes  of 
cases  in  which  the  protection  of  the  national  government  is  forfeited, 
in  whole  or  in  part.  We  shall  not  enter  here  into  an  examination  of 
the  duties  incumbent  upon  states  themselves  to  observe  neutrality 
in  the  case  of  war  between  two  other  nations,  but  shall  confine  our 
discussion  to  such  cases  of  breach  of  neutrality  by  an  individual  as 
incur  either  a  criminal  prosecution  under  municipal  law  or  the  loss 

'  The  Betsey  (U.  S.)  v.  Gt.  Brit.,  Nov.  19,  1794,  Moore's  Arb.  2839. 

=  Ibid,  2848. 

^  Mayer  v.  U.  S.,  3  Ct.  CI.  249,  to  the  effect  that  the  collection  of  ante-bellum  debta 
in  the  confederate  lines  was  not  commercial  intercourse  with  the  enemy.  Investment 
by  a  loyal  citizen  in  the  confederate  Hnes  in  a  city  captured  by  Union  forces,  making 
the  purchaser  a  resident  within  the  Union  lines,  took  him  and  the  transaction  out 
of  the  prohibition  of  the  non-intercourse  act  of  18G1;  Furman  v.  U.  S.,  5  Ct.  CI.  579; 
La  Plante  v.  U.  S.,  6  Ct.  CI.  311.  To  the  effect  that  the  non-intercourse  act  did  not 
apply  to  purchases  of  cotton  in  the  disloyal  states  by  an  alien  resident  abroad  through 
an  agent,  where  it  does  not  appear  that  the  agent  was  appointed,  or  the  means  to 
purchase  transmitted,  during  the  rebellion,  see  Ensley  t^.  U.  S.,  9  Ct.  CI.  11;  6  Ct.  CI. 
282. 


756  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

(complete  or  partial)  of  national  protection,  or  both.  The  principal 
cases,  in  the  diplomatic  history  of  nations,  in  which  such  protection 
has  been  forfeited  may  be  grouped  under  the  headings:  Privateering; 
Unlawful  expeditions;  Unneutral  military  or  other  service;  and  Un- 
neutral aid  and  comfort. 

(a)  Privateering 

In  spite  of  the  fact  that  most  states  by  treaty  or  statute  have  abol- 
ished privateering,  it  is  still  permissible  under  the  general  rules  of 
international  law.^  The  Declaration  of  Paris  of  1856,  to  which  Ger- 
many, France,  Austria,  Russia,  Prussia,  Sardinia,  and  Turkey  were 
signatories  abolished  privateering,  so  far  as  these  countries  were  con- 
cerned. 

Opinions  differ  as  to  the  piratical  character  of  a  vessel  of  a  neutral 
state,  armed  as  a  privateer  with  a  commission  from  one  of  the  bellig- 
erents. While  the  act  of  privateering  is  but  one  step  removed  from 
piracy  and  punishable  by  the  municipal  law  of  most  countries  when 
engaged  in  by  nationals,  it  is  admitted  by  most  writers  not  to  be  piracy 
in  international  law,-  although  many  authors  believe  that  it  should 
be  made  so. 

'  Austria,  Decree  of  May  25,  1854  prohibits  Austrian  subjects  from  using  letters 
of  marque,  or  from  any  participation  in  the  armament  of  a  vessel,  no  matter  under 
what  flag,  and  if  they  infringe  this  order,  they  will  not  only  be  deprived  of  the  pro- 
tection of  the  Austrian  government,  but  punishable  by  Austria  or  a  foreign  state. 
Spain,  the  Scandinavian  countries,  and  other  governments  have  frequently  issued 
orders  to  their  own  subjects  prohibiting  them  from  engaging  in  privateering  against 
a  foreign  friendly  nation.    See  Halleck,  International  Law,  London,  1908,  II,  135. 

The  Secretary  of  State  of  the  United  States  in  reply  to  the  notes  of  the  English 
and  French  ministers  communicating  the  resolutions  of  the  two  allied  powers  not 
to  authorize  privateering  said: 

"The  laws  of  this  country  impose  severe  restrictions  not  only  upon  its  own  citizens, 
but  upon  all  persons  who  may  be  residents  within  any  of  the  territories  of  the  United 
States,  against  equipping  privateers,  receiving  commissions,  or  enlisting  men  therein, 
for  the  purpose  of  taking  part  in  any  foreign  war."  H.  Ex.  Doc.  103,  33rd  Cong., 
1st  sess.,  cited  in  Halleck,  II,  135. 

-Ortolan,  Diplomatic  dc  la  mer.  Book  2,  Ch.  XI;  Hautefeuille,  Des  Nations 
neutros,  title  III,  ch.  2;  Abreu,  Tradato  de  los  presas,  pt.  2,  ch.  1,  §§  7,  8;  Kent, 
Commentaries,  I,  100;  Phillimore,  International  Law,  I,  §  358;  Kluber,  Droit  des 
gens,  §  260.  If  not  actually  piracy  the  above  writers  agree  that  privateering  is  an 
infraction  of  international  law. 


DKCISIOXS    OF    INTERNATIONAL    TKIBUNALS  757 

§  359.  Decisions  of  International  Tribunals. 

The  effect  upon  a  citizen's  protection  arising  out  of  an  act  of  priva- 
teering against  a  nation  with  whicli  his  government  is  at  peace  was 
considered  at  length  by  several  international  commissions.  In  the 
case  of  the  representatives  of  Captain  Clark,  a  United  States  citizen 
who  accepted  a  privateering  commission  from  the  Uruguayan  govern- 
ment to  cruise  against  the  commerce  of  Spain  and  Portugal,  with 
which  countries  Uruguay  was  at  war  and  the  United  States  at  peace, 
the  facts  showed  that  Captain  Clark  had  captured  a  Spanish  and  a 
Portuguese  vessel.  Both  prizes  were  seized  and  taken  from  him  by 
a  public  armed  ship  of  Colombia.  When  Colombia  separated  into 
New  Grenada,  Venezuela  and  Ecuador,  each  of  these  states  assumed 
a  certain  portion  of  the  debts  of  Colombia.  The  claim  was  presented 
to  the  United  States-New  Grenada  Mixed  Commission  of  Sept.  10, 
1857  ^  and  an  award  made  in  favor  of  the  claimant,  which  decision, 
however,  the  three  commissions  which  subsequently  considered  tiu- 
claim  declined  to  follow.  These  commissions  were  the  United  State- 
Ecuador  Commission  of  Nov.  25,  1862,^  the  United  States-Colombian 
Commission  of  February  10,  1864,^  and  the  United  States- Venezuela  it 
Commission  of  Dec.  5,  1885.^  The  decision  in  each  of  these  arbitra- 
tions agreed  that  Captain  Clark,  while  serving  under  the  flag  of  Uru- 
guay, must  be  regarded  as  a  Uruguayan  citizen  and  that  for  the  pur- 
poses of  his  claim  his  nationality  was  determined  by  his  commission 
and  by  the  flag  under  which  he  fought.  On  the  question  of  his  breach 
of  neutrality,  the  following  extracts  may  be  quoted: 

"It  would  be  against  all  public  morality  and  against  the  policy  of  all 
legislation  if  the  United  States  should  uphold  or  endeavor  to  enforce 
a  claim  founded  on  a  violation  of  their  own  laws  and  treaties  ^  and  on 

1  Moore's  Arb.  1301,  2730. 

2/6t(/.,  2731. 

s  Ibid.,  2740. 

*  Ilrid.,  2743. 

5  Under  the  Act  of  June  14,  1797,  citizens,  subjects  or  inhabitants  of  the  United 
States  are  strictly  prohibited  from  taking  any  commission  or  letters  of  marque  for 
arming  any  ship  or  vessel  against  Spain  on  behalf  of  her  revolting  colonies.  See 
the  Bello  Corrunes,  6  Wheat.  152.  The  14th  article  of  the  treaty  with  Spain  of  1795 
which  prohibits  citizens  or  subjects  from  taking  commissions  to  cruise  against  the 
other  includes  private  armed  vessels.    See  the  Santissima  Trinidad,  7  Wheat.  283. 


758  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

the  perpetration  of  outrages  committed  by  an  American  citizen  against 
the  subjects  ...  of  friendly  nations.  ...  He  who  engages  in  an  ex- 
pedition prohibited  by  the  laws  of  his  country  must  take  the  conse- 
quences." 1 

"Considering,  however,  the  light  in  which  privateering  expeditions 
organized  in  neutral  countries  are  looked  upon,  the  recognition  of  the 
right  of  these  parties  to  claim  as  American  citizens  would  lead  to  what 
would  seem  a  singular  and  startling  result.  ...  A  foreigner  taking 
part  in  a  contest  which  did  not  concern  him  would  be  able  to  invoke 
first,  the  assistance  of  the  government  which  he  served  and  from  which 
he  derived  his  authority,  and  secondly,  if  it  failed  or  was  unable  to  ob- 
tain satisfaction  for  him,  he  might  claim  the  protection  and  support 
of  his  o^vn  government  in  making  good  his  demands,  although  he  had 
been  engaged  in  defiance  of  its  declarations  founded  in  the  clearest 
obligations  of  international  law  in  carrying  on  war  against  nations  with 
whom  that  government  was  at  peace."  ^ 

"  It  is  just  because  Clark  was  a  citizen  of  the  United  States  and  in  that 
character  committed  acts  of  hostilities  against  the  citizens  of  another 
country  with  which  his  o\n\  government  was  at  peace,  that  prevents  us 
from  considering  his  claim.  It  would  be  very  absurd,  indeed,  to  hold 
that  a  citizen  forfeited  his  citizenship  by  a  violation  of  the  neutrality 
of  his  country,  but  it  is  quite  true  and  proper  to  maintain  that  no  man 
shall  invoke  or  receive  the  aid  of  any  court,  municipal  or  international, 
in  reco^ering  the  fruits  of  his  own  wrongdoing."  ^ 

(b)   Unlawful  Expeditions 

§  360.  Neutrality  Acts  of  the  United  States. 

The  delicate  position  in  which  the  United  States  was  placed  during  the 
wars  between  Great  Britain  and  France  at  the  end  of  the  eighteenth 
century  and  the  use  which  the  French  sought  to  make  of  American 
territory  (relying  on  the  commercial  treaty  of  1778  with  the  United 
States)  for  organizing  expeditions  against  British  commerce  and  bring- 
ing in  for  adjudication  British  prizes  captured  by  these  vessels,  made 
it  incumbent  upon  our  government  at  an  early  day  to  establish  the 
principles  of  neutrality  which  have  since  governed  the  policy  of  the 
United  States,  a  policy  which  has  been  followed  by  Great  Britain 

'  Opinion  of  Hassaurek,  United  States-Ecuador  Commission  of  1802,  Moore's 
Arb. 2738. 

2  Opinion  of  Sir  Frederick  Bruce  (Gt.  Brit.),  umpire  in  United  States-Colombian 
Commission  of  1864,  Moore's  Arb.  2740-2741. 

3  Opinion  of  Findlay  (U.  S.),  Coniissioner  in  United  States-Venezuelan  Commission 
of  1885,  .Moore's  Arb.  2748-2749.    Stx>  Moore's  Dig.  Ill,  788. 


NEUTRALITY  ACTS  OF  THE  UNITED  STATES  759 

and  which  has,  indeed,  been  a  most  important  contributing  factor 
in  developing  the  international  law  of  neutrality.*  On  April  22,  1793, 
Washington  issued  his  celebrated  proclamation  of  neutrality  in  which 
he  declared  that  no  citizen  would  be  protected  against  punishment, 
or  any  forfeiture  which  he  might  incur  under  the  law  of  nations  by 

■committing,  aiding,  or  abetting  hostilities  against  any  of  the  said 
[belligerent]  powers,  or  by  carrying  to  any  of  them  those  articles  which 
are  deemed  contraband  by  the  modern  usage  of  nations"; 

and  the  important  announcement  was  made  that  the  President  had 
instructed  the  proper  officers  to  institute  prosecutions  against  persons 
violating  the  proclamation.  It  having  been  impossible,  under  the 
existing  law,  to  convict  a  certain  Henfield  for  having  shipped  on  a 
French  privateer,* the  Neutrality  Act  of  June  5,  1795  was  passed.  Its 
provisions  were  continued  and  elaborated  in  various  acts  up  to  that 
of  April  12,  1818,  which  act  has  since  been  incorporated  into  the  Re- 
vised Statutes,  §§  5281  to  5291. 

By  the  terms  of  these  sections  of  the  Revised  Statutes  a  citizen 
within  the  United  States  is  prevented  from  accepting  or  exercising 
a  commission  to  serve  in  war  against  a  friendly  nation,  or  to  enlist 
on  an  armed  vessel  of  a  foreign  state  (§  5281);  he  is  forbidden  to  fit 
out  or  arm  a  vessel  with  intent  to  employ  it  in  the  service  of  a  foreign 
state  or  people  (§  5282) ;  to  cruise  or  commit  hostilities  against  the 
subjects  of  a  friendly  state  or  people  (§  5283) ;  or  to  augment  the 
forces  of  any  foreign  ship  of  war  (§  5285) ;  or  to  begin  or  set  on  foot 
within  the  United  States,  a  military  expedition  against  a  friendly 
people  (§  5286) ;  and  armed  vessels  leaving  the  United  States  are  re- 
quired to  give  bond  that  they  will  not  be  employed  to  commit  hos- 
tilities against  the  subjects  of  a  friendty  state  or  people  (§  5289). 
These  acts  are  intended  to  prevent  a  citizen  from  compromising  the 
neutrality  of  the  United  States  in  any  way.  They  do  not,  however, 
prevent  an  individual  from  leaving  the  countrj^  with  intent  to  enlist 

'  Our  early  political  history  in  matters  of  neutrality,  with  the  early  statutes  and 
the  cases  thereunder,  is  presented  by  Dana  in  an  elaborate  note  to  Wheaton's  Ele- 
ments of  international  law,  Boston,  1866,  note  215,  pp.  53  et  seq.  See  also  Fenwick, 
C.  G.,  The  neutrality  laws  of  the  United  Statea,  Washington,  1913,  ch.  II;  Moore's 
Dig.  VII,  §  1292  et  seq. 


760  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

in  foreign  military  service.^  Tlie  British  Foreign  Enlistment  Acts 
of  1819  and  1870  are  equally  intended  to  prevent  a  violation  by  British 
subjects  of  British  neutrality.  They  have  followed  closely  the  terms 
of  the  American  acts,  except  that  the  Act  of  1870  apparently  prohibits 
a  British  subject  from  taking  service  under  a  foreign  state  or  people 
against  a  friendly  state  either  within  or  without  the  British  territory. - 

§  361.  Effect  of  Participation  in  Unlawful  Expeditions  upon  Protection. 

In  the  diplomatic  history  of  the  United  States  numerous  occasions 
have  presented  themselves  in  which  it  was  necessary  for  the  United 
States  to  define  its  position  on  the  effect  which  the  organization  in 
or  departure  from  the  United  States  of  unlawful  expeditions  against 
friendly  peoples  or  states  would  have  on  the  protection  ordinarily 
extended  to  citizens  of  the  United  States.  The  revolutions  in  Cuba 
have  frequently  furnished  opportunities  for  adventurous  spirits  to 
organize  expeditions  in  aid  of  the  Cubans,  and  the  internal  troubles 
in  Mexico  and  other  Central  and  South  American  states  have  likewise 
given  occasion  for  the  organization  of  expeditions  for  the  assistance 
of  one  or  ti-e  other  of  the  contending  parties. 

President  Taylor,  on  being  informed  that  such  armed  expeditions 
were  being  fitted  out  in  the  United  States,  issued  in  1849  a  proclama- 
tion in  which  he  warned 

"all  citizens  of  the  United  States  who  shall  connect  themselves  with  an 
enterprise  so  grossly  in  violation  of  our  laws  and  our  treaty  obligations, 
that  they  will  thereby  subject  themselves  to  the  heavy^  penalties  de- 
nounced against  them  by  our  acts  of  congress  and  will  forfeit  their  claim 
to  the  protection  of  their  country.  .  .  .  No  such  persons  .  .  .  must 
expect  the  interference  of  this  government  in  any  form  on  their  behalf, 
no  matter  to  what  extremities  they  may  be  reduced  in  consequence  of 
their  conduct."  ^ 

1  U.  S.  V.  Hertz  riS55),  26  Fed.  Caa.  No.  15,357;  U.  S.  v.  Nunez  (1890),  82  Fed.  Rep. 
599;  U.  S.  V.  O'Brien  (1S96),  75  Fed.  Rep.  900. 

^Oppenheim,  II,  :}75,  376. 

3  l^he  Proclamation  of  President  l^iylor,  Aug.  11,  1849,  9  Stat.  L.  1003,  Richard- 
son's Messages,  V,  p.  7,  cited  in  Moore's  Dig.  Ill,  787-788;  sec  also  Proclamation 
of  President  Fillmore,  April  25,  1851,  Ri(;hardson's  Messages,  V,  p.  Ill,  Moore's 
Dig.  Ill,  788.  The  principle  annoimced  has  since  been  greatly  modified;  see  Procla- 
mation of  President  Cleveland,  1895,  Richardson's  Messages,  IX,  p.  591.     On  the 


EFFECT  OF   PARTICIPATION   IN   UNLAWFUL  EXPEDITIONS  761 

As  will  be  noted,  while  diplomatic  protection  is  to  some  extent  for- 
feited by  transgressors  of  the  kind  referred  to  in  the  proclamation, 
they  are  still  protected  against  violent  invasion  of  their  rights  of  trial 
or  against  cruel  and  inhuman  treatment.  While  the  neutrality  acts 
of  Great  Britain  and  the  United  States  already  impose  upon  these 
countries  greater  obligations  than  international  law  requires,  the 
President  of  the  United  States  has  on  several  occasions  by  special 
order  still  further  increased  the  duties  of  the  United  States  by  forbid- 
ding the  exportation  of  arms  to  disturbed  areas,  considering  such  an 
act  as  a  breach  of  neutrality. 

These  orders  have  been  promulgated  in  the  case  of  countries  in 
close  proximity  to  the  United  States,  the  disturbed  condition  of  which 
may  constitute  a  menace  for  the  United  States,  the  orders  being  jus- 
tified upon  the  same  grounds  which  support  intervention  under  similar 
circumstances.  Thus,  the  joint  resolution  of  March  14,  1912,  intro- 
duced in  the  Senate  by  Mr.  Root,  authorizes  the  President  to  forbid 
in  his  discretion  the  exportation  of  arms  or  munitions  of  war  to  American 
countries  in  which  he  shall  find  conditions  of  domestic  violence  to 
exist,  and  declares  that  any  shipment  of  such  material  made  after 
the  issue  of  the  President's  Proclamation  "shall  be  punishable  by 
fine  not  exceeding  ten  thousand  dollars  or  imprisonment  not  exceed- 
ing two  years,  or  both."  On  the  same  day,  the  President  issued  the 
proclamation  provided  for  in  the  resolution  by  declaring  formally 
that  "conditions  of  domestic  violence  promoted  by  the  use  of  arms 
or  munitions  of  war  procured  from  the  United  States  as  contemplated 
by  the  said  joint  resolution"  do  in  fact  exist,  and  he  warned  all  persons 
that  violations  would  be  rigorously  prosecuted.^ 

This  takes  out  of  the  category  of  lawful  commercial  enterprises, 
under  the  exceptional  circumstances  mentioned,  a  transaction  hitherto 
regarded  as  perfectly  legitimate.  There  is  now  a  general  movement 
to  further  increase  neutral  obligations  by  preventing  money  from 
being  supplied  to  belligerents  by  citizens  of  neutral  countries,  not  to 

law  of  hostile  military  expeditions,  written  principally  from  the  point  of  view  of  the 
responsibility  of  the  state  therefor,  see  R.  E.  Curtis  in  8  A.  J.  I.  L.  (1914),  1-37, 
224-255,  reprinted  as  a  Wisconsin  doctor's  dissertation. 

1  37  Stat.  L.  630;  U.  S.  v.  Chavez,  228  U.  S.  525;  Fenwick,  op.  cit.,  58. 


762  THE   DIPLOMATIC   PROTECTION   OF  CITIZENS  ABROAD 

mention  the  agitation,  stimulated  by  the  European  War,  for  prohibiting 
completely  the  export  of  arms  and  munitions  of  war. 

§  362.  Cases  before  International  Tribunals. 

Several  cases  of  unlawful  expeditions  which  have  occurred  in  the 
diplomatic  history  of  the  United  States  have  come  for  adjudication 
before  international  tribunals.  In  one  of  the  most  important  of  these 
cases,  certain  American  citizens  purporting  to  act  in  the  interests  of 
a  revolutionary  party  in  Mexico  entered  into  an  agreement  with  one 
Zerman,  an  officer  of  the  French  navy,  to  take  command  of  an  expedi- 
tion to  sail  from  San  Francisco  on  a  vessel  purchased  by  them.  A 
vessel  and  arms  were  purchased  from  American  citizens,  passengers 
and  freight  solicited,  and  a  crew  which  had  knowledge  of  the  expedition 
placed  on  board.  Three  days  after  sailing  the  warlike  nature  of  the 
enterprise  was  fully  revealed  by  Zerman  appearing  in  a  Mexican  uni- 
form, the  English  flag  being  lowered  and  the  Mexican  hoisted  in  its 
place.  Some  of  the  passengers  had  no  guilty  knowledge  of  the  nature 
of  the  expedition  until  that  time.  The  vessel  while  on  the  way  to  Mexico 
chartered  an  American  whaling  ship  with  her  captain  and  crew.  On 
arrival  at  Mexico,  she  was  seized,  the  passengers  and  crew  arrested 
and,  under  harsh  circumstances,  marched  to  the  interior  and  subjected 
to  great  cruelty. 

Claims  were  brought  on  behalf  of  the  owner  of  the  first  vessel,  of 
the  person  who  supplied  the  arms,  of  the  crew,  of  the  passengers, 
of  the  owner  and  captain  of  the  chartered  vessel,  and  others.  It  was 
held  by  Thornton,  umpire  of  the  1868  commission  with  Mexico,  that 
those  who  had  guilty  knowledge  of  the  purpose  of  the  expedition  could 
not  receive  the  protection  of  the  United  States  in  recovery,  certainly 
so  far  as  the  seizure  of  the  vessel  and  goods  was  concerned.  This 
decision  applied  to  the  owner  of  the  original  vessel,  the  Archibald 
Grade, ^  and  to  the  person  who  had  furnished  the  arms  and  ammunition 
for  the  expedition,^  as  well  as  to  passengers  who  had  guilty  knowledge 

•  Dennison  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2707. 

-  Gros  (U.  S.)  i>.  Mexico,  Moore's  Arb.  2771.  This  was.  however,  didum,  inasmuch 
as  Thornton  held  that  Gros  hiui  not  acquired  United  States  citizenship,  and  di»- 
rnisH(Hl  the  claim  on  that  ground. 


CASES   BEFORE    INTERNATIONAL   TRIBUNALS  763 

of  the  nature  of  the  expedition/  or  who,  by  ignorance,  showed  an 
absence  of  prudence.^  In  these  cases,  however,  in  spite  of  the  culpable 
conduct  of  the  claimant,  the  umpire  allowed  sums,  "the  lowest  possible 
amounts,"  as  he  said,  for  the  unnecessary  and  illegal  delay  in  proceeding 
with  their  trial  and  for  the  harsh  treatment  imposed  upon  them  by 
the  Mexican  authorities.  In  the  case  of  innocent  passengers  having 
no  knowledge  of  the  nature  of  the  expedition,  compensation  was  al- 
lowed for  their  property  seized.  The  owner  of  the  second  vessel,  the 
Rebecca  Adams,  which  had  been  chartered  by  her  captain  to  Zerman 
without  the  owner's  knowledge,  was  held  entitled  to  the  full  value 
of  the  vessel,  as  the  Mexican  authorities  had  not  released  it  within 
a  reasonable  time.^  The  captain  of  that  vessel,  the  umpire  held,  should 
have  known  the  illegal  nature  of  the  expedition,  but  damages  were 
awarded  for  his  loss  of  private  property  and  for  harsh  treatment  and 
illegal  delay  in  trial,'*  the  umpire  taking  account,  in  reducing  the  damage, 
of  his  indiscretion  in  chartering  the  vessel  to  Zerman.  The  officers 
and  crew  of  the  chartered  vessel  were  compensated  for  the  loss  of 
private  property  as  well  as  for  harsh  treatment  and  illegal  delay  in 
trial. 

The  Spanish-United  States  Mixed  Commission  of  Feb.  12,  1871 
dealt  with  the  case  of  the  Mary  Lowell  which  had  cleared  from  New 
York  in  1869  for  a  Mexican  port,  but  actually  carried  a  cargo  of  muni- 
tions of  war  for  the  insurgents  in  Cuba.  She  was  abandoned  at  the 
Bahamas  by  her  captain  and  crew  and  suffered  by  her  captain  to  come 
into  the  possession  of  parties  interested  in  promoting  the  Cuban  cause. 
While  leaving  the  British  port  she  was  seized  by  a  Spanish  vessel 
taken  to  Havana,  and  condemned  as  prize.  Baron  Blanc  (Italy), 
the  umpire,  admitted  that  she  had  been  captured  by  the  Spanish 
forces  in  violation  of  international  law,  yet,  said  he : 

"As  the  cargo  consisting  of  arms,  ammunition,  and  other  military 
supplies,  was  admittedly  intended  by  its  OMTier  ...  for  the  benefit 
of  insurgents  against  the  Spanish  government,  and  as  the  brig  was 
allowed  [by  her  captain]  either  willfully  or  negligently,  to  fall  into  the 

1  McCurdy  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2769. 

2  Dolan  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2767-2768. 
» Cootey  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2770. 

*  Andrews  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2769-2771.  i 


764  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

hands  of  parties  actively  interested  in  promoting  the  insurrection,  the 
claimants  forfeited  their  right  to  the  protection  of  the  American  flag, 
and  are  estopped  from  asserting  any  of  the  privileges  of  lawful  inter- 
course in  times  of  peace  and  any  title  to  individual  indemnity  as  against 
the  acts  of  the  Spanish  authority  done  in  self-defense."  i 

On  the  rehearing  of  the  case  the  umpire  held  that  the  infraction 
of  international  law  by  Spain  was  a  matter  between  the  United  States 
and  Spain  to  settle,  but  that  the  claimant  himself  by  his  unlawful 
act  was  estopped  from  pleading  Spain's  violation  of  international 
law.^  The  capture  of  the  Virginius  {infra)  on  the  high  seas  was  treated 
})y  the  United  States  as  a  national  affront  to  the  American  flag,  even 
though  her  flag  and  registration  were  "a  fraud  upon  the  navigation 
laws  of  the  United  States."  ^ 

In  the  case  of  Wyeth  and  Speakman  before  the  Spanish-United 
States  Commission,^  claimants  had  landed  in  Cuba  with  an  armed 
expedition,  were  taken  prisoners  by  Spain,  and  summarily  executed. 
It  was  contended  by  the  United  States  that  they  were  entitled  to  a 
fair  trial  according  to  the  usages  which  had  obtained  currency  among 
civilized  states  under  martial  law,  and  that  the  question  of  their  inno- 
cence or  guilt  was  for  this  purpose  irrelevant.^  The  umpire,  Bartholdi, 
held,  however,  that  the  claimants  having  "left  the  United  States 
with  an  expedition  intending  to  invade  the  island  of  Cuba"  and  having 
landed  there,  they  had  "no  right  to  recover  damages  from  the  govern- 
ment of  Spain."  Their  execution  was  apparently  justified  on  the 
ground  that  Spain  could  properly  consider  them  public  enemies,  but 

'  Campbell  and  Arango,  captain  and  owner,  respectively,  of  the  Brig  Mai-y  Lowell 
111.  S.)  V.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2772-2777;  Moore's  Dig.  II,  983-984. 

■'  The  claimant  in  the  case  of  Clark  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's 
Arb.  2749  was  held  equally  estopped  from  pleading  the  unlawful  character  of  the 
seizure  of  his  prizes,  when  he  must  have  violated  the  neutrality  and  the  laws  of  the 
United  States  and  its  obligations  in  accepting  and  acting  under  the  privateering 
connnission  by  virtue  of  which  the  captures  were  made. 

3  Williams,  Atty.  Gen.,  14  Op.  Atty.  Gen.  340. 

*  Wyeth  and  Speakman  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moon-'s  Arb.,  pp.  2777-79. 

''  Mr.  Webster,  Sec'y  of  State,  to  Mr.  Thompson,  Minister  to  Mexico,  April  If), 
1842  in  the  case  of  the  Santa  Fe  Expedition,  6  Webster's  Works,  pp.  427,  437;  Lieber's 
"Instructions  for  the  government  of  the  armies  of  the  United  States  in  the  field"; 
Scott's  Digest  of  military  law  (1873),  pp.  441  et  seq.,  cited  in  Moore's  Arb.  2778;  see 
also  Moore's  Dig.  Ill,  787. 


I 


EXECUTIVE  AND  JUDICIAL   RULINGS  765 

even  then  they  should  have  received  a  fair  trial.  Perhaps  the  umpire 
was  influenced  by  the  sweeping  terms  of  President  Taylor's  proclama- 
tion in  1849.  At  all  events,  the  case  may  be  regarded  as  extreme, 
and  not  supported  by  the  weight  of  authority. 

§  363.  Executive  and  Judicial  Rulings. 

The  United  States  and  the  British  government  have  not  ac- 
cepted the  view  that  a  foreign  government  has  the  right  to  in- 
flict arbitrary  punishment  upon  their  nationals  engaged  appar- 
ently in  a  hostile  expedition  against  it,  although  the  United  States 
has  declined  to  present  claims  for  the  capture  of  a  vessel  engaged  in 
transporting  an  unlawful  expedition,  notwithstanding  the  innocence 
of  the  owner.  ^ 

In  the  case  of  the  Virginius.  this  ship  had  by  fraud  obtained  American 
registration.  She  was  captured  on  the  high  seas,  while  flying  the 
American  flag,  bj''  a  Spanish  war-vessel,  for  carrying  arms  and  ammuni- 
tion to  insurgents  in  Cuba.  She  was  taken  to  Santiago,  Cuba,  and 
fifty-three  of  her  crew  and  passengers,  including  British  subjects, 
Americans  and  Cubans,  after  summary  trial  by  court-martial,  on  the 
charge  of  piracy,  were  executed.  In  spite  of  the  unlawful  character 
of  the  expedition,  both  the  United  States  and  Great  Britain  demanded 
and  secured  for  their  injured  citizens  and  their  families  a  large  indemnity, 
not  because  of  the  seizure  of  the  vessel  or  detention  of  the  passengers 
and  crew,  but  because  it  was  the  duty  of  the  Spanish  authorities  to 
prosecute  the  offenders  in  proper  form  of  law,  and  to  have  instituted 
regular  proceedings  on  a  definite  charge  before  the  execution  of  the 
prisoners,  and  because  Spain,  although  competent  to  apply  the  term 
"piracy,"  by  its  municipal  laws,  to  various  offenses  other  than  those 
deemed  piracy  by  the  law  of  nations,  could  not,  simply  by  applying 
the  term,  subject  them  to  the  penalties  incurred  by  piracy  under  the 
law  of  nations.^ 

It  has  been  observed  that  commercial  adventures  are  not  prohibited 

1  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Buchanan,  March  30,  1869,  Moore's  Dig.  VII, 
872  (case  of  the  Georgiana,  captured  by  Spain  while  engaged  in  the  Lopez  expedition 
to  Cuba). 

2  The  Virginius,  Moore's  Dig.  II,  895  el  seq.,  964-968,  980-983;  Hall,  op.  ci'.,  6tb 
ed.,  262,  270.    See  also  the  case  of  the  Competitor,  Moore's  Dig.  VI,  123,  786. 


766  THE    DIPLOMATIC    PROTECTION'    OF   CITIZENS    ABROAD 

by  the  neutrality  laws,  even  when  they  consist  in  the  sale  of  a  fully 
armed  vessel  in  a  port  of  the  United  States  or  bound  for  a  foreign 
port  for  sale,  or  in  the  sending  of  arms  and  munitions  of  war,  by  an 
individual,  as  merchandise,  to  an  individual  in  or  government  of  a 
belligerent  country.  The  line  between  a  commercial  transaction 
of  this  kind  and  an  unlawful  expedition  under  the  Revised  Statutes 
(§  5283)  is  often  a  narrow  one  and  the  solution  of  the  matter  turns 
on  the  question  of  intent.  The  fitting  out  and  arming  of  the  vessel 
must  be  coupled  with  the  intent  to  employ  her  to  cruise  or  commit 
hostilities  against  the  subjects  or  property  of  a  friendly  state  or  people 
in  order  to  bring  her  within  the  penalties  of  the  United  States  neutrality 
acts.^  Of  course,  the  shipment  of  arms  and  munitions  of  war  subjects 
the  property  to  the  usual  penalties  of  contraband,  namely,  confisca- 
tion by  belligerents. 

Lord  Granville  during  the  Carlist  war  of  1873  pressed  for  the  res- 
titution of  two  British  steamers  seized  on  the  high  seas  by  the  Spaniards 
on  suspicion  of  conveying  arms  to  the  insurrectionists.  As  the  insur- 
rectionists had  not  been  recognized  as  belligerents,  the  capture  was 
considered  unlawful  by  the  British  minister,  who  demanded  release 
of  the  vessels.  On  application  by  the  owner  to  Lord  Granville  for 
redress  on  account  of  losses,  he  was  told  that  when  British  subjects 
enter  into  speculation  such  as  that  in  which  these  vessels  were  employed, 
they  must  not  look  to  the  British  government  for  compensation  or 
support  if  the  expedition  prove  disastrous.  Baty  adds  that  it  is  a 
little  curious  why  Great  Britain  interfered  at  all.^ 

(c)  Unneutral  Military  Service  and  Other  Acts 

§  364.  Qualified  Loss  of  Protection. 

The  United  States  neutrality  laws  do  not  prohibit  its  citizen  from 
going  abroad  and  there  enlisting  in  the  military  service  of  a  belligerent. 
The  penalty  imposed  is  simply  a  loss — and  usually  not  a  complete  loss — 

1  The  Meteor  (1866),  17  Fed.  Cas.  No.  9,498;  The  Itata  (C.  C.  A.),  1893,  56  Fed. 
Rep.  505;  The  Laurada  (1898),  85  Fed.  Rep.  760;  The  Conserva  (1889),  38  Fed.  Rep. 
431;  5  Op.  Atty.  Gen.  92. 

*  The  Queen  of  the  Seas,  and  The  Deerhound,  65  St.  Pap.  446,  513,  579,  725.  cited 
and  paraphrased  in  Baty,  International  law,  162. 


UNNEUTRAL   MILITARY  SERVICE  767 

of  the  right  to  national  protection.  The  neutrality  laws  simply  prevent 
the  acceptance  or  exercise  of  a  foreign  commission,  or  service  to  a  foreign 
people  or  state,  within  the  United  States,  or  illegal  expeditions  depart- 
ing from  the  United  States  or  organized  within  the  United  States  for 
such  service.  The  British  Foreign  Enlistment  Act  of  1870  ^  provides 
the  penalty  of  fine  and  imprisonment  for  any  person  who 

"without  the  license  of  Her  Majesty,  being  a  British  subject,  within  or 
without  her  Majesty's  dominions,  accepts  or  agrees  to  accept  any  com- 
mission or  engagement  in  the  military  or  naval  service  of  any  foreign 
state  at  war  with  any  foreign  state  at  peace  with  Her  Majesty."  ^ 

It  has  already  been  observed  that  the  state  owes  no  duty  to  other 
states  to  prevent  its  subject  from  going  abroad  to  enlist  in  a  hostile 
army.  But  if  he  does,  he  may  incur  certain  penalties,  which  may  be 
prescribed  by  the  municipal  law  of  his  own  state  and  which  it  may 
enforce  as  it  deems  proper.  Usually,  such  service  constitutes  a  viola- 
tion of  his  national  neutrality  laws,  and  he  incurs,  besides,  a  partial 
loss  of  national  protection.  We  say  partial  because  if  the  citizen  found 
in  arms  against  a  foreign  government  is  subjected  to  unusual  punish- 
ment by  the  foreign  government,  his  own  government  will  interpose 
to  secure  a  mitigation  or  amelioration  of  the  hardship,  provided,  of 
course,  that  he  has  not,  by  an  unqualified  oath  of  allegiance,  expa- 
triated himself.  Secretary  of  State  Webster  expressed  the  status 
of  individuals  so  found  in  arms  against  a  foreign  state,  as  follows: 

"It  is  still  the  duty  of  this  government  to  take  so  far  a  concern  in  their 
welfare,  as  to  see  that,  as  prisoners  of  war,  they  are  treated  according 
to  the  usages  of  modern  times  and  civilized  nations."  ^ 

Should  the  citizen  be  killed  in  battle  every  possibility  of  claim  is  ex- 
tinguished with  him.    He  has  by  his  unneutral  conduct  taken  his  life 

»  33  and  34  Vict.  (1870),  Ch.  90,  §  4. 

*  N.  W.  Sibley,  The  neutrality  of  Great  Britain;  The  Foreign  Enlistment  Act 
(1870),  29  Law  Mag.  and  Rev.  454-467;  30  ibid.  37-53.  To  effect  that  mere  military 
service  abroad  does  not  denationalize,  see  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Ralston, 
438,  454. 

3  Webster's  Works,  VI,  436,  see  paraphrase  in  Moore's  Dig.  Ill,  787;  Mr.  Fish, 
Sec'y  of  State,  to  Mr.  WiUiams,  July  29,  1874,  For.  Rel.,  1874,  300.  See  also  papers 
of  Theodore  S.  Woolsey  and  Arthur  K.  Kuhn  in  Proceedings  of  the  American  Soc. 
of  Int.  Law  (1910),  99  d  seq.,  110  et  seq.,  and  E.  P.Wheeler  in  3  A.  J.  I.  L.  (1909),  880, 


768  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

into  his  own  hand.s.  Sliould  he,  however,  be  taken  prisoner,  he  must 
be  treated  according  to  the  rules  of  war,  and  his  national  government 
will,  according  to  precedent,  enforce  his  rights  in  this  respect. 

The  position  of  an  alien  serving  with  revolutionists  to  overthrow 
the  government  presents  a  delicate  problem,  in  which  the  United  States 
has  several  times  been  involved.  It  ought  to  be  clear  that  if  captured 
by  the  titular  government  he  is  subject  to  severe  penalties,  perhaps 
even  more  severe  than  those  visited  upon  natives,  for  he  was  purely 
a  mischief-maker  and  probably  not  fighting  for  patriotic  reasons. 
If  the  punishment  is  fair  and  not  violative  of  the  rules  of  war,  his  na- 
tional government  will  not  interpose.  Likewise,  if  his  punishment 
is  no  greater  than  that  inflicted  on  natives  or  on  other  aliens,  his 
government  will  usually  abstain  from  interfering.  Only  in  three  cases 
will  his  government  manifest  a  protective  interest  in  his  behalf:  (1)  if 
his  treatment  has  been  inhuman;  (2)  if,  while  captured  in  an  organized 
rebel  army,  the  rules  of  war  have  been  violated  to  his  prejudice;  (3)  if 
he  is  discriminated  against  on  account  of  his  nationality  as  against 
other  aliens.  Professor  Woolsey  has  concisely  expressed  the  general 
rules  governing  an  alien  aiding  an  insurrection  against  the  established 
government  of  a  friendly  state : 

"(1)  He  is  liable  to  all  the  risks  of  the  situation  on  a  par  with  the 
native ; 

(2)  He  may  perhaps  even  be  discriminated  against  because  less  ex- 
cusable than  the  native; 

(3)  Yet  by  his  treatment  humanity  must  not  be  violated; 

(4)  Nor  may  he  stand  on  a  worse  footing  than  other  aliens,  although 
self-defense  will  justify  a  good  deal  of  severity."  i 

This  question  was  squarely  presented  in  the  case  of  Cannon  and 
Groce,  two  American  citizens  captured  in  1909  by  the  Nicaraguan 
president  Zelaya  while  holding  commissions  as  officers  in  the  service 
of  the  forces  of  Estrada,  unrecognized  revolutionists.  They  were 
summarily  executed,  apparently  without  any  kind  of  a  fair  trial.  This 
outrage  called  forth  from  Secretary  of  State  Knox  a  vigorous  note  in 
which  he  expressed  the  intention  of  holding  "personally  responsible 
the  men  who  were  to  blame  for  the  torture  and  execution"  of  these 
citizens,  whatever  that  may  mean.  It  is  clear  from  this  and  other 
'  Proceedings  of  the  American  Soc.  of  Int.  Law  (1910),  103. 


UNNEUTRAL   MILITARY   SERVICE  7G9 

cases  that  an  alien  taking  up  arms  against  a  friendly  state  retains 
a  large  measure  of  his  national  protection.  In  the  Cannon  case,  while 
the  citizen  was  disloyal  to  the  United  States  in  fighting  against  the 
established  government  in  Nicaragua,  his  government  still  insisted 
upon  his  being  accorded  the  treatment  of  a  prisoner  of  war.^  Pro- 
tection in  such  cases  usually  takes  the  form  of  an  amelioration  or  mitiga- 
tion of  harsh  or  extraordinary  punishments.  There  is  much  to  be 
said,  however,  for  the  view  that  when  American  citizens  so  completely 
identify  themselves  with  a  foreign  state  and  its  domestic  affairs  as 
to  fight  with  rebels  in  violation  of  their  natural  obligations  as  neutrals, 
they  forfeit  all  claim  to  the  protective  interest  of  their  national  govern- 
ment,^ a  principle  recognized  in  the  protocol  for  the  settlement  of 
the  Santos  claim  against  Ecuador  by  the  admission  that  claimant 
lost  his  standing  if  he  had  been  "  guilty  of  such  acts  of  unfriendliness 
and  hostility  to  the  government  of  Ecuador,  as,  under  the  law  of  na- 
tions, deprived  him  of  the  consideration  and  protection  due  to  a  neutral 
citizen  of  a  friendh'  nation."  ^ 

The  United  States  will  generally  not  interpose  to  secure  money 
damages  for  a  citizen  who  has  violated  its  neutrality  laws.  As  Secre- 
tary Bayard  expressed  it:  The  Department  of  State  will  not  present 
to  a  foreign  government  a  claim  based  on  transactions  involving  a 
violation  of  the  neutrality  of  the  United  States.^  American  citizens 
who  implicate  themselves  in  foreign  revolutions  have  a  very  weak 
title  to  national  protection,  valuable  only  to  prevent  a  flagrantly 
harsh  violation  of  their  persons  through  unusual  forms  of  punishment. 

When  Don  Miguel's  government  was  overthrown  in  Portugal  in 
1833  one  of  its  generals.  Sir  J.  Campbell,  a  British  subject,  was  captured 
in  a  British  vessel  bearing  Miguelist  dispatches.  On  invoking  British 
protection,  Lord  William  Russell  declared  the  general  rule:  "when 

'  4  A.  J.  I.  L.  (1910),  674-675;  Sec'y  Knox's  note  in  Supplement  (1910),  p.  249. 

2  See  Baty  in  35  Law  Mag.  &  Rev.  (1910),  205-206.  The  British  government 
appears  to  have  exercised  its  good  offices  in  several  cases,  appealing  to  the  grace  of 
the  foreign  government.    Ibid.  206. 

'  Santos  V.  Ecuador,  Feb.  28,  1893,  Moore's  Arb.  1584  el  seq.;  Moore's  Dig.  Ill, 
756;  La  Fontaine,  450. 

*  Mr.  Bayard,  Sec'y  of  State,  to  Messrs.  Morris  &  Fillette,  July  28,  1888,  Moore's 
Dig.  VI,  623. 


770  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

a  military  ofRcer  serves  another  sovereign  his  allegiance  is  to  that 
sovereign,  and  his  rights  as  an  Englishman  cease."  Lord  Palmersion 
concurred  in  the  opinion  but  remonstrated  mildly  on  Campbell's 
continued  close  imprisonment  as  contrary  to  the  usage  of  war.^ 

In  the  case  of  Nolan  before  the  British-American  Commission  of 
1871,^  an  award  was  made  in  spite  of  the  proven  unneutral  conduct 
of  the  claimant  because  the  prison  in  which  he  was  detained  was  wholly 
unfit  for  use  and  his  treatment  at  times  harsh  and  cruel. 

Secretary  of  State  Webster  in  1842  stated  that  a  citizen  engaged 
as  a  combatant  in  a  foreign  country,  captured  by  the  other  belligerent 
within  its  jurisdiction,  forfeits  the  protection  of  his  own  government,^ 
a  principle  which  must  probably  be  understood  within  the  limitations 
above  expressed.  Mr.  Fish,  referring  to  a  steamer  chartered  by  an 
American  citizen  to  the  Haitian  government  as  an  auxiliary  to  military 
operations  for  the  suppression  of  an  insurrection  against  Haiti,  stated 
that  such  a  vessel 

"must  be  regarded  as  relying  exclusively  upon  the  protection  of  that 
power,  and  [as]  abjuring,  while  such  employment  continues,  any  claim 
to  the  protection  of  the  United  States."  ^ 

Provided  the  citizen  thus  engaged  is  not  suffering  from  or  threatened 
with  an  extraordinary  or  unusual  punishment  or  hardship,  this  view 
is  not  incorrect. 

Secretary  of  State  Sherman  in  stating  that  the  United  States  could 
not  interfere  to  compel  the  employing  government  of  Guatemala  to 
pay  for  the  services  of  a  vessel  voluntarily  carrying  arms  and  troops 
for  such  government  while  trying  to  put  down  an  insurrection  added : 

"  it  would  leave  the  vessel  and  its  crew  so  voluntarily  entering  into  such 
service  to  the  consequences  of  establishing  such  a  relation."  ^ 

The  service  of  an  American  vessel  in  the  transport  service  of  Great 
Britain  during  her  war  with  France,  the  vessel  being  chartered  to  carry 

'  23  St.  Pap.  1263,  cited  by  Baty,  International  law,  98-99. 

2  Nolan  (Gt.  Jirit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3302;  Hale,  79. 

3  Mr.  Webster,  Sec'y  of  State,  to  Mr.  Peyton,  Jan.  6,  1842,  Moore's  Dig.  Ill,  787 
*  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Bassett,  Sept.  15,  1869,  Moore's  Dig.  II,  107a 

See  also  Mr.  Foster,  Sec'y  of  State,  to  Mr.  Scruggs,  Sept.  30,  1892,  ildd.  1075. 
'  Mr.  Sherman  to  Mr.  Coxe,  April  21,  1897,  For.  Rel.,  1897,  p.  332. 


UNNEUTRAL    MILITARY    SERVICE  771 

supplies  to  the  British  garrison  in  the  West  Indies,  justified  her  seizure 
and  deprived  her  of  American  protection.  * 

Expulsion  is  not  an  extraordinary  penalty  for  a  foreigner  taking 
part  in  an  insurrection  and  the  United  States  has  in  such  cases  de- 
clined to  relieve  a  citizen  charged  with  aiding  and  abetting  an  insur- 
rection from  such  a  penalty.^  The  expulsion  must,  however,  be  carried 
out  without  unreasonable  severity.^ 

Service  in  a  revolution  involves  all  the  attendant  risks  of  such  service. 
As  was  said  by  the  commissioners  of  1849  in  the  Atocha  case: 

"He  may  not  assist  or  involve  himself  ...  in  the  revolution  of  a 
country  without  incurring  the  responsibility  and  sharing  the  fate  of 
those  with  whom  he  acts."  ^ 

^  Under  the  treaty  of  1800  between  the  United  States  and  France  a  cargo  took  its 
national  character  from  the  flag  under  which  it  was  carried;  free  ships  making  free 
goods,  and  enemy  ships  making  enemy  goods.  But  when  that  treat}'  expired  the 
general  law  of  nations  obtained  as  between  France  and  the  United  States,  according 
to  which  the  property  of  an  enemy  is  under  all  circumstances  a  legitimate  object 
of  seizure  and  confiscation.  Under  international  law  the  property  of  the  neutral 
would  not  be  affected  by  its  association  with  that  of  a  belligerent,  and  an  American 
non-contraband  cargo  seized  in  British  bottoms  by  the  French  was  restored.  Kane 
in  his  notes  on  the  questions  decided  by  the  commissioners  under  the  convention  with 
France,  states  that  the  exceptions  to  this  rule  were  due  to  the  misconduct  of  a  neutral, 
as,  for  example,  where  he  endeavored  to  mask  the  property  of  an  enemy  by  com- 
mingling it  with  his  own,  or  by  otherwise  investing  it  with  a  neutral  garb,  in  which 
cases  he  forfeited  his  national  claim  to  immunity.  He  cites  the  case  of  a  Swedish 
ship  which,  having  been  purchased  by  an  American,  entered  a  French  port,  France 
being  then  at  war  with  Sweden,  and  simulated  American  papers  to  protect  her  from 
capture  as  an  enemy.  The  American  cargo  which  she  carried  was  held  justly  liable 
to  condemnation.  Kane's  Notes,  Phila.,  1836,  pp.  49-51.  See  also  Darby  v.  Erstern, 
2  Dall.  34. 

2  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Powell,  Min.  to  San  Domingo,  May  1,  1902, 
For.  Rel.,  1902,  pp.  382-383. 

'  Hollander  case  against  Haiti,  For.  Rel.,  1895,  II,  775  et  seq. 

*  Atocha  (U.  S.)  V.  Mexico,  Opin.  of  Domestic  Commission  under  Act  of  March  3, 
1849  referred  to  in  Moore's  Arb.  1264,  but  not  reported;  Di  Caro  (Italy)  v.  Venezuela, 
Feb.  13,  May  7,  1903,  Ralston,  769.  But  the  claimant's  government,  even  where 
there  is  such  censurable  conduct,  wiU  not  tolerate  a  cruel  or  unusual  punishment 
or  an  unfair  trial.  For  the  policy  of  Great  Britain  in  this  regard,  see  the  Earl  of 
Clarendon  to  Acting  Consul  Barbar  In  re  seizure  of  steamer  Cagliari  h\  the  Sicilian 
government,  charged  with  aiding  revolutionists.  Two  British  subjects  on  board 
were  imprisoned.  While  local  jurisdiction  over  them  was  admitted,  the  right  to 
counsel,  to  a  fair  trial,  and  to  customary  imprisonment  was  insisted  on.    For  failure 


772  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

Numerous  cases  have  come  before  international  commissions  in 
which  American  citizens  have  claimed  compensation  for  military 
service  rendered  to  foreign  governments.  The  decision  in  most  of 
these  cases  has  followed  the  principle  laid  down  in  the  case  of  Dimond 
against  Mexico  before  the  Domestic  Commission  under  the  act  of 
March  3,  1849:  ^  "When  citizens  of  the  United  States  leave  their  own 
country  and  enter  into  the  service  of  another,  they  thereby  voluntarily 
renounce  their  allegiance  and  with  it  relinquish  their  right  to  the  pro- 
tection of  the  government  under  which  they  were  born,"  although, 
as  has  been  observed,  under  the  municipal  law  of  the  United  States, 
military  service  abroad,  not  accompanied  by  an  unqualified  oath 
of  allegiance,  does  not  amount  to  expatriation. 

In  the  case  of  Young,-  before  the  Domestic  Commission  of  1849, 
the  Commissioners  in  rejecting  a  claim  for  military  service  said: 

"For  the  United  States  to  press  the  claim  of  one  of  its  citizens  against 
a  foreign  government  for  compensation  for  military  service,  would  con- 
stitute a  violation  of  the  principles  of  neutrality." 

As  the  Mexican  law  provided  that  persons  entering  its  military 
service  thereby  acquired  Mexican  citizenship,  the  statute  was  in  several 
cases  given  effect  as  conferring  Mexican  citizenship  pro  tempo  during 
the  time  of  the  service,  thus  depriving  the  claimant  of  his  standing 
as  an  American  citizen.^  While  the  individual  could,  held  the  com- 
missioners, by  a  return  to  his  own  countiy  restore  his  national  charac- 
ter, he  lost  the  benefits  of  his  American  citizenship  during  his  foreign 

to  comply  with  these  conditions,  Great  Britain  demanded  and  secured  an  indemnity 
of  £3000,  48  St.  Pap.  351,  354;  see  also  Baty,  International  law,  118. 

1  Dimond  (U.  S.)  v.  Mexico,  Feb.  2,  1848,  Act  of  Mar.  3,  1849,  Moore's  Arb.  2386; 
Robinson  (U.  S.)  v.  Mexico,  Mar.  3,  1849,  iUd.  2389;  Wallace  (U.  S.)  v.  Mexico, 
July  4,  1868,  ibid.  3474;  Lake  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2754  (Op.  of  Wads- 
worth,  Commissioner).  A  similar  decision  was  made  by  the  Spanish  Treaty  Claims 
Commission  in  the  cases  of  Jova,  No.  122,  and  Caldwell,  No.  283,  American  citizens 
who  had  served  with  the  Cuban  insurgents  against  Spain.  Explanatory  Notes  in 
Briefs,  XXIV,  126. 

2  Young  (U.  S.)  V.  Mexico,  Mar.  3,  1849,  Moore's  Arb.  2753;  Meyer  (U.  S.)  v. 
Mexico,  March  3,  1849,  ibid.  2390. 

3  Martin  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2467;  Greene  (U.  S.)  v. 
Mexico,  July  4,  1868,  ibid.  2756.  The  U.  S.  has  recognized  the  validity  of  a  foreign 
law  conferring  naturalization  upon  an  American  citizen  enlisting  in  a  foreign  army. 
Supra,  p.  711. 


UNNEUTRAL   MILITARY    SERVICE  773 

service.^  In  one  case  where  the  claimant,  having  served  in  the  Mexican 
army  as  an  officer  and  instructor  of  military  tactics,  had  given  up  his 
service  and  started  to  return  to  the  United  States,  when  he  was  robbed 
of  money  by  a  Mexican  soldier,  Commissioner  Wadsworth,  in  the 
commission  of  1868,  held  that  while  he  could  return  and  re-establish 
liis  rights  as  an  American  citizen 

''he  must  have  persevered  in  his  intention  until  the  change  [of  domicil] 
was  effectuated,  and  not  having  actually  returned  before  the  injury  took 
place,  he  was  not  entitled  to  diplomatic  protection."  ^ 

The  strength  of  the  bond  of  allegiance  was  in  many  cases  either 
underestimated  or  overestimated  before  the  expatriation  act  of  1868 
and  before  the  policy  of  the  United  States  became  fixed.  Those  de- 
cisions of  the  commission  of  1849  which  penalize  service  abroad  with 
a  loss  of  citizenship  must  be  understood  at  most  in  the  sense  of  a  tem- 
porary loss  of  protection  during  the  continuance  of  the  service.  An 
earl}-  decision  in  the  United  States  Circuit  Court  went  to  the  other 
extreme  and  held  that  an  American  citizen  may  enter  the  land  or 
naval  service  of  a  foreign  government  without  divesting  himself  thereby 
of  his  rights  of  citizenship.^  This  must  be  understood  in  the  narrow 
sense  of  full  legal  citizenship,  which  is  not  perhaps  forfeited,  although 
it  is  certain  that  manj-  incidents  of  citizenship,  including  the  right 
of  protection,  are,  by  such  unneutral  service,  seriously  impaired. 

The  general  principle  of  a  forfeiture  of  protection  by  military  serv- 
ice abroad  was  somewhat  modified,  in  the  case  of  certain  claims  against 
Mexico  arising  out  of  military  service  rendered  to  her,  by  the  fact 
that  Mexico  had  in  1825  acknowledged  a  liability  for  such  service. 
Thus,  in  the  cases  of  Porter  and  McRae  before  the  Domestic  Com- 
mission of  1849,  the  commission  stated: 

"This  new  obligation  was  not  obnoxious  to  the  objection  which  viti- 
ated the  claim  arising  out  of  the  original  contract  and  has  since  been 
leeognized  as  valid  and  binding  upon  that  government  (Mexico)." 

After  stating  that  the  commission  under  the  convention  of  1839  had 
recognized  these  claims  as  valid,  they  added: 

1  Young  (U.  S.)  V.  Mexico,  Mar.  3,  1849,  Moore's  Arb.  2753. 

2  Monstery  (U.  S.)  v.  Mexico,  Op.  I,  38,  referred  to  in  Moore's  Arb.  2467. 

» The  Santissima  Trinidad,  1  Brockenbrough,  478,  decision  by  Marshall. 


774  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

"The  validity  of  the  claims  against  Mexico  based  upon  the  obligation 
of  1825  has  been  recognized  by  the  Court  of  Appeals  of  Maryland  in  the 
case  of  Gill,  trustee,  v.  Oliver  et  al."  i 

The  neutrality  of  a  nation  in  a  war  waged  by  other  powers,  renders 
obligatory,  according  to  international  law,  the  observance  of  neutral- 
ity by  all  its  citizens,  however  difficult  it  may  be  for  its  government 
to  enforce  by  municipal  statutes  a  conformity  by  individuals  with  the 
duties  thus  assured  by  it. 

The  case  of  Whitty,^  a  subject  of  Great  Britain  who  had  rendered 
service  to  the  Confederate  army  and  sought  exemption  from  the  penal- 
ties of  his  unneutral  act  by  showing  that  he  had  resigned  such  service 
when  he  learned  of  the  proclamation  of  Her  Majesty  enjoining  neu- 
trality upon  her  subjects  in  the  Civil  War,  gave  the  arbitral  commis- 
sion under  the  protocol  of  May  8,  1871,  occasion  to  state  that  the  ob- 
ligations of  neutrality  of  an  individual  are  dependent  upon  the  attitude 
of  his  nation  and  that  the  claimant  was  bound  to  neutral  duty  before 
Her  Majesty's  proclamation;  and  moreover  that  a  pardon  granted 
by  the  President  restoring  to  those  participating  in  the  Rebellion 
their  rights  of  property,  excepting  "property  which  may  have  been 
legally  divested  under  the  laws  of  the  United  States,"  as  had  been 
the  property  of  this  unneutral  foreigner,  did  not  relieve  claimant  from 
the  taint  of  unneutrality. 

Under  the  protocol  between  the  United  States  and  Costa  Rica  which 
provided  that 

"  no  claim  of  any  citizen  of  the  United  States  who  may  be  proved  to  have 
been  a  belligerent  during  the  occupation  of  Nicaragua  by  the  troops  of 
Costa  Rica,  or  the  exercise  of  authority,  by  the  latter,  within  the  terri- 
tory of  the  former,  shall  be  considered  as  one  proper  for  the  action  of 
the  board  of  commissioners," 

it  was  held  by  the  umpire,  Bertinatti  (Italy),  that  a  person  who  re- 
moved the  greater  part  of  his  merchandise  on  the  approach  of  the 

'  Gill,  Trustee,  v.  Oliver,  et  al.,  11  Howard,  529.  See  Mercantile  Ins.  Co.  (U.  S.)  v. 
Mexico,  Moore's  Arb.  3429;  Meade  (U.  S.)  v.  Mexico,  ibid.  3430;  Porter  and  McRae 
(V.  S.)  V.  Mexico,  ildd.  2390. 

2  VAOiitty  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  2883.  For  the  neutral 
duties  incumbent  upon  the  subject  of  a  neutral  nation,  see  Opinion  of  Bruce,  umpire 
in  the  case  of  La  Constancia,  etc.  (U.  S.),  v.  Ecuador,  Feb.  10,  1864,  Moore'a  Arb. 
2741. 


UNNEUTRAL    MILITARY    SERVICE  HO 

Costa  Ricans  to  a  city  held  by  the  Nicaraguans  and  took  refuge  on 
board  a  Nicaraguan  vessel  was  a  belligerent;  ^  and  that  inasmuch 
as  a  certain  corporation  had  shown  its  complicity  with  certain  fili- 
busters in  Nicaragua,  the  corporation  and  the  captain  of  one  of  its 
vessels  were  "belligerents"  under  the  protocol.^ 

Notwithstanding  the  proclamation  of  Presidents  Taylor  and  Fill- 
more and  the  declaration  of  secretaries  Webster  and  Fish,  quoted 
above,  it  is  now  certain,  as  recent  practice  confirms,  that  American 
citizens  taking  military  service  abroad  against  a  friendly  state  do  not 
completely  forfeit  all  right  to  their  national  protection.  In  the  case 
of  a  number  of  American  citizens  who  had  served  with  the  Boers  and 
had  been  taken  prisoners  by  the  British  troops  in  the  South  African 
war,  Secretary  of  State  Hay  addressed  a  note  to  our  ambassador  in 
London,  Mr.  Choate,  stating  that  some  of  these  prisoners  had  been 
confined  in  the  unhealthful  climate  of  Ceylon  and  asked  their  removal 
to  a  more  healthful  place.    Mr.  Hay  added : 

''The  government  of  the  United  States  could  not  view  without  con- 
cern the  risk  of  life  and  health  involved  in  sending  any  unacclimated 
citizens,  taken  under  the  circumstances  described,  to  so  notoriously 
insalubrious  a  place  as  the  Island  of  Ceylon.  The  principles  of  public 
law  which  exclude  all  rigor  or  severity  in  the  treatment  of  prisoners  of 
war  beyond  what  may  be  needful  to  their  safety  imply  their  nonsubjec- 
tion  to  avoidable  danger  from  any  cause." 

The  United  States,  in  the  case  of  these  and  other  prisoners  sent  to 
St.  Helena  and  other  military  stations,  made  several  attempts  to  secure 
their  release  and  sought  to  make  arrangements  for  their  transporta- 
tion home  or  to  other  favorable  places.  The  men  were  finally  sent 
to  the  United  States  at  the  expense  of  Great  Britain.^ 

While  governments  therefore,  as  has  been  observed,  will  admit  that 
their  citizens,  engaging  in  military  service  to  foreign  governments, 
are  subject  to  capture  and  treatment  as  prisoners  of  war,  they  insist 
that  such  iniDrisonment  shall  not  be  violative  of  the  rules  of  war  and 


1  Bowley  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  Moore's  Arb.  1567. 
« Accessory  Transit  Co.  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  Moore's  Arb.  1558j 
Hoover  (U.  S.)  v.  Costa  Rica,  July  2,  1860,  ibid.  1567. 
»  For.  Rel.,  1902,  pp.  463-497  (Mr.  Hay's  note  is  dated  Oct.  16,  1900). 


776  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

shall  not  be  unreasonably  harsh.  The  decision  in  the  Wyeth  and  Speak- 
man  case  (supra,  p.  764)  may  be  regarded  as  dependent  upon  other 
elements  in  that  case,  and  at  all  events  no  authority  against  the  rule 
here  expressed. 

§  365.  Claims  for  Military  and  Other  Service. 

Notwithstanding  the  general  rule  of  the  United  States  that  the 
claims  of  its  citizens  for  military  service  rendered  to  foreign  govern- 
ments or  for  military  pensions  will  not  be  supported,  Great  Britain 
does  not  appear  to  have  adopted  such  a  rule.  Thus,  Great  Britain 
in  1873  successfully  urged  a  claim  of  one  of  her  subjects  arising  out 
of  military  service  rendered  to  Brazil  by  claimant's  father.  Lord  Coch- 
rane, during  Brazil's  war  of  independence.^  In  the  Lake  case,  the 
services  rendered  by  the  claimant  to  Mexico  ^  were  acknowledged 
by  Palacio,  the  Mexican  commissioner,  as  a  just  claim  against  Mexico, 
but  on  the  whole  the  decision  may  be  regarded  as  exceptional,  and 
not  based  upon  law,  but  on  the  equitable  views  of  the  Mexican  com- 
missioner. Similarly,  by  way  of  exception,  the  special  acknowledg- 
ment by  Mexico  of  debts  for  services  rendered,  was  held  to  justify 
awards,  by  the  Mixed  Commission  of  1839  and  the  Domestic  Com- 
mission under  the  Act  of  March  3,  1849,  on  claims  arising  out  of  mili- 
tary service  of  American  citizens  rendered  to  the  Mexican  government. 

In  spite  of  the  general  rule  that  military  service  by  a  citizen  abroad 
to  a  foreign  country  entails  (within  the  limitations  mentioned)  a  for- 
feiture of  national  protection,  Earl  Russell  held,  in  the  case  of  a  British 
subj(>ct  who  had  served  in  the  Confederacy,  that  when  British  protec- 
tion is  demanded  by  such  an  individual  in  a  third  country  (Mexico) 
it  ought  not  to  be  withdrawn  from  him.^ 

Service  of  various  kinds,  rendered  to  a  foreign  government,  has 
been  held  to  be  violative  of  the  claimant's  neutrality,  even  where 
it  was  not  strictly  military  service.  Thus,  work  done  in  the  building 
and  repairing  of  Peruvian  vessels  by  a  United  States  citizen,  while 
Peru  was  at  war  with  Spain  and  at  peace  with  the  I'nited  States,  was 

'  Dundonald  (Gt.  Brit.)  v.  Brazil  (1873),  Moore's  Arb.  2107-08. 

2  Lake  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2754. 

3  Earl  Russell  to  Mr.  Scarlett,  .Iiuie  1,  18()5,  For  Rel.,  1873,  II,  p.  1342. 


CLAIMS    FOR    MILITARY    AND    OTHER    SERVICE  777 

considered  unneutral  service,^  and  barred  a  claim  against  Peru.  So, 
the  fact  that  an  American  citizen  in  the  course  of  a  war  between  France 
and  Mexico  took  charge,  for  Mexico,  of  certain  engineering  projects 
and  the  erection  of  fortifications  during  a  military  engagement,  was 
regarded  as  a  violation  of  his  neutrality.^ 

The  acceptance  of  a  position  as  purchasing  agent  for  the  state  of 
Louisiana,  then  in  rebellion  against  the  Union,  was  considered  unneu- 
tral service  on  the  part  of  a  British  subject.'  Similarly,  the  acceptance 
of  a  position  in  one  of  the  Confederate  states  (Mississippi)  by  a  British 
subject,  which  office  could  only  be  held  by  a  citizen  of  the  Confederacy, 
was  held  to  be  a  violation  of  neutrality  and  a  bar  to  the  claim.'* 

The  equitable  claim,  however,  of  an  Italian,  employed  as  an  assist- 
ant engineer  in  the  service  of  Venezuela,  he  having  lived  there  but 
a  few  years,  was  allowed  by  Umpire  Ralston,  because  "in  a  political 
sense  he  was  not  more  important  to  the  government  than  a  da}'  la- 
borer." ^ 

The  mere  acceptance  of  a  civil  office  under  a  foreign  government 
will  not  in  itself  under  ordinary  circumstances  be  construed  as  a  for- 
feiture of  national  protection.  The  Department  will  determine  in 
each  case  how  far  such  office-holding  constitutes  an  identification 
with  the  interests  of  the  foreign  state  so  as  to  impair  the  citizen's  right 
to  protection.  So,  if  coupled  with  an  oath  of  allegiance  to  the  foreign 
state  such  office-holding  might  well  bar  his  right  to  claim  the  pro- 
tection of  the  United  States.®  It  is  regarded  as  an  important  factor, 
in  connection  with  all  the  surrounding  circumstances,  in  deciding 
whether  the  citizen  has  weakened  his  claim  upon  the  protection  of 
his  own  government.  It  is  frequently  applied  in  cases  of  naturalized 
citizens  returning  to  their  native  country  and  accepting  office  there.^ 

'  Hevner  (U.  S.)  v.  Peru,  Dec.  4,  1868,  Moore's  Arb.  1650;  same  decision  in  cases 
of  Crosley,  Hardy  and  Clark,  Moore's  Arb.  1651. 

'  Fitch  (U.  S.)  V.  Mexico,  July  4,  1868,  Thornton,  Umpire,  Moore's  Arb.  3476. 

3  Whitty  (Gt.  Brit.)  v.  United  States,  May  8,  1871,  Moore's  Arb.  2823. 

*  Eakin  (Gt.  Brit.)  v.  United  States,  May  8,  1871,  Moore's  Arb.  2819;  Hale's 
Rep.,  H.  Ex.  Doc,  Pt.  I,  43rd  Cong.,  1st  sess.  (For.  Rel.,  1873,  pt.  Ill),  15. 

•^  Giordana  (Italy)  v.  Venezuela,  Feb.  13,  May  7,  1903,  Ralston,  783,  797,  808. 

«  Mr.  Hill,  Asst.  Sec'y  of  State,  to  Mr.  Lombard,  May  12,  1900  (case  in  Cuba), 
Moore's  Dig.  Ill,  785. 

"  See  Moore's  Dig.  Ill,  782  et  seq.,  and  various  diplomatic  notes  there  quoted. 


778  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

Service  in  an  urban  guard  to  protect  tiie  community,  under  circum- 
stances where  the  government  was  unable  to  protect  foreigners  against 
the  depredations  of  Indians  and  others,  was  held  by  the  United  States 
as  self-protection,  and  "not  in  support  of  any  faction,"  hence  not 
a  violation  of  neutrality.^  But  the  acceptance  of  office  in  the  diplo- 
matic service  of  a  foreign  government,  combined  with  evidence  of 
political  interest  in  its  factions  during  an  extended  period  of  time 
was  held  in  the  Corvaia  case  before  the  Italian-Venezuelan  commis- 
sion of  1903  to  deprive  the  claimant  of  his  standing  as  an  Italian  sub- 
ject, although  it  must  be  added  that  the  Italian  civil  code  also  provided 
that  the  acceptance  of  such  office  involved  a  loss  of  citizenship.^ 

§  366.  Participation  in  Politics. 

Various  cases  have  occurred  in  which  the  conduct  of  the  citizen, 
while  not  necessarily  unneutral,  has  nevertheless  been  construed  as 
sufficiently  unfriendly  toward  a  third  government  or  as  a  sufficient 
identification  with  its  interests  to  debar  his  claim  as  a  bona  fide  citizen 
of  his  own  government  entitled  to  full  rights  of  diplomatic  protection. 
Such  cases  have  arisen  particularly  where  the  citizen  has  identified 
himself  with  the  political  disputes  of  a  foreign  government,  or  in  some 
other  way  has  so  conducted  himself  toward  that  government  that 
his  own  state  in  equity  considers  itself  by  his  censurable  conduct  es- 
topped from  demanding  full  recognition  of  his  rights  as  its  citizen. 
Thus,  where  a  certain  United  States  citizen  had  invoked  the  interposi- 
tion of  the  United  States  in  respect  of  a  claim  against  the  Hawaiian 
government  growing  out  of  his  alleged  arbitrary  arrest  for  connection 
with  an  attempted  revolt  in  January,  1895,  and  it  was  shown  that 
special  rights  of  Hawaiian  citizenship  had  been  conferred  on  him  under 
a  constitution  which  conferred  such  rights  on  persons  who  had  actively 
participated  or  otherwise  rendered  special  service  in  the  formation 
of  the  provisional  government,  the  Department  of  State  said : 

''Having  thus  personally  taken  part  in  the  subversion  of  one  govern- 
ment and  the  establishment  of  another  in  a  foreign  country,  it  is  question- 
able whether  he  has  not  so  completely  identified  himself  with  the  govern- 

1  Case  in  Peru,  Moore's  Dig.  VI,  626-027. 

«  Corvaia  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  782. 


PARTICIPATIOX    IN    POLITICS  779 

ment  which  was  finally  established,  as  to  have  lost  his  right  to  American 
protection,  notwithstanding  he  appears  to  have  intended  to  reserve  that 
right."  1 

Too  great  a  degree  of  political  activity  in  a  foreign  country  often 
entails  a  forfeiture  of  national  protection,  and  where  it  involves  iden- 
tification with  armed  factions  forfeits  neutral  protection.  There  is, 
however,  no  reason  to  conclude  that  the  exercise  of  minor  political 
rights,  such  as  voting,  etc.,  without  some  other  obnoxious  intermixture 
in  political  affairs,  would  in  itself  be  construed  as  a  forfeiture  of  the 
right  to  diplomatic  protection. 

Participation  of  a  claimant  in  violence  or  revolution  against  the 
defendant  government  so  as  to  deprive  him  of  his  right  of  protection 
as  a  neutral  citizen  must  be  proved  beyond  all  reasonable  doubt  in 
order  that  it  may  be  pleaded  as  a  defense  against  a  claim  for  the  value 
of  neutral  property  destroyed  by  government  troops.^  Merely  favor- 
ing a  revolutionary  party  without  any  other  acts  of  hostility  will  not 
deprive  the  citizen  of  a  neutral  nation  from  enforcing  a  claim  for  the 
use  of  his  vessels  not  seized  as  hostile  ships.^ 

Municipal  courts  of  claims  established  by  South  American  countries 
to  adjudicate  upon  claims  of  foreigners  arising  out  of  rebellions  usually 
pro\ade  that  those  foreigners  who  have  committed  a  breach  of  neutrality 
by  taking  part  in  the  revolution  shall  have  no  right  to  appear  as  claim- 
ants and  require  the  claimant  to  prove  that  he  is  a  foreigner  and  has 
not  forfeited  his  neutrality.^  The  requirement  of  proving  neutrality 
under  the  law  of  Colombia  gave  rise  to  a  ruling  of  the  Department 

1  Mr.  Uhl,  Act'g  Sec'y  ot  State,  to  Mr.  Willis,  May  14,  1895,  For.  Rel.,  1895,  II, 
854-5.  See  also  the  Hahnville  lynching  case,  Moore's  Dig.  Ill,  344;  cases  in  Moore's 
Dig.  Ill,  784-786,  and  Bradford,  Atty.  Gen.  (1795),  1  Op.  Atty.  Gen.  57.  See  par- 
ticularly Canevaro  (Italy)  v.  Peru,  Nov.  25,  1899,  Descamps  and  Renault,  Rec.  int. 
des  traites  du  xx*  siecle,  1901,  p.  711  (under  protocol  requiring  claimant  to  prove 
neutrality) . 

2  Kelly  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  340-344. 

'  Orinoco  Steamship  Co.  (U.  S.)  ;;.  Venezuela,  Feb.  13,  1903,  Ralston,  372;  Castro 
(U.  S.)  V.  Mexico,  Convention  of  July  4,  1860,  Moore's  Arb.  2816-2817,  in  which 
an  .\merican  citizen  who  had  sided  with  the  partisans  of  Maximilian  in  Mexico  was 
compensated  for  the  use  of  his  store  for  cjuartering  troops  of  Mexicans.  This  is  not 
considered  good  law. 

*  See  law  of  Colombia  on  the  recognition  of  claims  of  foreigners  for  exactions 
during  t.he  late  rebellion.    Bogata,  Oct.  17,  1903,  98  St.  Pap.  839,  841. 


780  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

of  State  in  answer  to  an  inquiry  as  to  whether  the  American  legation 
could  certify  to  the  neutrality  of  American  citizens.  The  Department 
held  that  such  certification  by  a  legation  was  irregular  and  unauthor- 
ized, and  that  citizens  are  bound  by  the  neutrality  laws  of  the  United 
States  to  remain  neutral.  If  they  engage  in  acts  violative  of  neutrality, 
they  must  bear  the  consequences,  but  the  government  will  see  that 
full  justice  and  opportunity  of  defense  are  assured  them.  Their  neu- 
trality is  presumed  until  the  contrary  is  proved  and  application  to 
the  legation  for  a  certificate  of  neutrality  does  not  fortify  the  presump- 
tion which  the  legation  is  bound  to  entertain.^ 

§  367.  Unfriendly  Acts. 

The  unfriendly  act  against  a  foreign  government  is  closely  related, 
in  its  effects  upon  protection,  to  unneutral  conduct.  While  commis- 
sion of  an  unfriendly  act  frequently  involves  a  violation  of  neutrality, 
it  need  not  necessarily  be  unneutral,  for  it  may  occur  in  times  of  ab- 
solute peace.  While  unneutral  conduct  is  usually  a  violation  of  the 
municipal  law  of  the  offender's  state,  the  unfriendly  act  generally 
is  an  infringement  of  the  local  law  of  the  state  of  residence.  Both, 
however,  give  rise  to  repressive  measures  by  the  injured  state  and, 
in  the  absence  of  unusual  cruelty  or  harshness,  the  national  govern- 
ment of  the  guilty  alien  will  not  interfere  to  save  him  from  the  conse- 
quences of  his  act.  Protection  will  sometimes  go  to  the  extent  of  an 
attempt  to  change  or  ameliorate  the  penalty  to  one  of  greater  leniency. 

The  unfriendly  act  may  take  various  forms.  The  element  of  hos- 
tility to  the  local  government  is  always  present.  The  act  may  consist 
in  the  publication  of  offensive  articles  tending  to  bring  the  govern- 
inont  into  contempt,  or  to  induce  attacks  upon  it.  In  numerous  cases 
expulsion  has  been  the  penalty  inflicted  by  the  local  government, 
and  where  the  offender's  national  government  was  convincetl  of  the 
justice  of  the  charge,  objection  has  rarely  been  raised  against  the 
execution  of  the  penalty.  Only  where  the  expulsion  has  been  carried 
out  harshly  or  cruelly  has  the  government  interposed.  It  may  be 
added,  however,  that  the  national  government  will  usually  demand 

1  Act'g  Sec'y  of  State  Hill,  to  Mr.  Beaupr6,  July  22,  1902,  For.  Rel.,  1902,  pp.  314- 
31.5. 


UNFRIENDLY    ACTS  781 

evidence  of  the  guilt  of  its  citizen.  In  many  cases,  it  has  not  considered 
itself  bound  by  the  determinations  of  local  courts  or  executive  findings, 
but  has  instituted  an  independent  investigation.^  Similarly,  improper 
methods  in  his  trial  may  constitute  a  ground  of  objection  and  inter- 
position, e.  g.,  where  court-martial  is  substituted  for  regular  judicial 
procedure.-  As  a  general  rule,  in  the  presence  of  the  unfriendly  act 
of  its  citizen,  the  government  will  not  extend  its  protection  for  the 
purpose  of  securing  monej'^  damages,  but  will  limit  its  interposition 
to  assuring  a  proper  measure  of  personal  rights  and  comfort. 

In  Waller's  case,  in  which  claimant  had  been  guilty  of  inciting  certain 
natives  of  Madagascar,  the  Horas,  against  the  French,  and  giving  them 
information  of  a  military  nature,  Secretary  Olney  reported : 

"In  view  of  Waller's  willful  and  culpable  attempt  against  the  French 
authority  in  Madagascar,  it  is  manifest  that  no  claim  for  damages  on 
Waller's  account  could  be  properly  pressed  by  the  United  States,  or 
could  be  expected  to  be  entertained  by  the  French  Government."  ^ 

In  the  case  of  the  Caroline,  President  Harrison,  in  his  message  of 
Dec.  7,  1841,  said: 

"If  it  shall  appear  that  the  owner  of  the  Caroline  was  governed  by  a 
hostile  intent,  or  had  made  common  cause  with  those  who  were  in  the 
occupanc}^  of  Navy  Island,  then,  so  far  as  he  is  concerned,  there  can  be 
no  claim  to  indemnify  for  the  destruction  of  his  boat,  which  this  govern- 
ment would  feel  itself  bound  to  prosecute."  ^ 

Interposition,  as  observed,  has  generally  been  directed  to  securing 
an  amelioration  of  a  harsh  penalty,  or  compensation  for  violation 
of  a  citizen's  right  to  a  fair  trial  and  reasonable  punishment.'^ 

It  has  already  been  noted  that  an  obnoxious  intermixture  in  local 
politics  may  constitute  a  violation  of  neutrality.    It  may,  in  addition, 

'  Waller's  case  against  France,  For.  Rel.,  1895,  I,  251  el  seq.,  Moore's  Dig.  II,  204 
et  seq. 

^  Cases  cited  and  quoted  in  Moore's  Dig.  II,  198  et  seq. 

3  Mr.  Olney,  Sec'y  of  State,  to  the  President,  Feb.  5,  1896,  For.  Rel.,  1895,  I,  257. 

*  30  St.  Pap.  194.    See  also  Bradford,  Atty.  Gen.  (1795),  1  Op.  Atty.  Gen.  57. 

'  Carroll's  case  (Gt.  Brit.)  v.  United  States,  where  the  penalty  for  seditious  con- 
duct was  remitted  to  expulsion.  See  also  Santangelo  (U.  S.)  v.  Mexico,  April  11, 
1839,  Moore's  Arb.  3333-34;  Dubos  (France)  v.  U.  S.,  Jan.  15,  1880,  Moore's  Arb, 
331^32. 


782  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

constitute  an  unfriendly  act,  and  in  either  event  has  been  held  to  forfeit 
national  protection.^ 

The  famous  Arbuthnot  and  Ambrister  case,  in  which  two  English- 
men' had  incited  the  Indians  to  hostility  against  the  United  States, 
is  an  important  case  under  this  head.  These  men  were  found  guilty 
by  a  military  court,  respectively,  of  "aiding  and  comforting  the  enemy 
and  supplying  them  with  the  means  of  war"  and  of  "levying  war 
against  the  United  States."  Both  were  shot.  It  is  unnecessary  to 
discuss  Jackson's  unscientific  language  in  defense  of  their  execution, 
to  the  effect  that  they  forfeited  their  allegiance  and  became  outlaws 
and  pirates.  At  all  events.  Great  Britain,  while  not  acquiescent  in 
the  harsh  sentence  and  execution,  decided  that  it  could  not  inter- 
fere for  the  protection  of  British  subjects  who  engage,  without  the 
consent  of  their  government,  in  a  foreign  war.  They  become  liable 
to  military  punishment  if  the  party  by  whom  they  are  taken  chooses 
to  carry  the  rights  of  war  to  that  cruel  severity.  Lord  Castlereagh 
observed  that  the  grounds  on  which  they  had  forfeited  the  rights 
of  British  protection  were  that  they  had 

"identified  themselves,  in  part  at  least,  with  the  Indians,  by  going 
amongst  them  with  other  purposes  than  those  of  innocent  trade;  by 
sharing  in  their  sympathies  too  actively  when  they  were  upon  the  eve 
of  hostilities  with  the  United  States;  by  feeding  their  complaints;  by 
imparting  to  them  counsel;  by  heightening  their  resentments,  and  thus 
at  all  events  increasing  the  predispositions  which  they  found  existing 
to  the  war,  if  they  did  not  originally  provoke  it."  ^ 

Had  a  weaker  government  than  the  United  States  been  charged  with 
such  conduct  toward  British  subjects,  it  is  not  improbable  that  Great 
Britain  would  have  come  to  a  different  conclusion,  just  as  the  United 
States  did  in  the  cases  of  Cannon  and  Groce,  who  were  executed  in 

'  Tripler  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2823-24.  See  convention 
between  the  United  States  and  Ecuador  for  the  submission  of  claims  of  Julio  R. 
Santos,  Feb.  28,  1893,  86  St.  Pap.  1175-76.  Baty,  International  law,  p.  170-171. 
Unneutral  behavior  subsequent  to  an  unjust  expulsion  will  not  bar  a  claim  for  dam- 
ages arising  out  of  the  expulsion.  Murphy  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's 
Arb.  3343. 

2  Mr.  Rush,  Minister  at  London,  to  Mr.  Adams,  Sec'y  of  State,  Jan.  25,  1819, 
Moore's  Dig.  VI,  621.  For  a  full  statement  of  this  case  see  Halleck,  International 
law,  London,  1908,  II,  200-202,  and  6  St.  Pap.  423  et  seq. 


UNNEUTRAL   SUPPLIES   AND    OTHER   AID  783 

Nicaragua  under  circumstances  not  altogether  dissimilar  to  those 
in  the  cases  of  Arbuthnot  and  Ambrister.  Perhaps  the  barbarous 
nature  of  the  warfare  conducted  by  the  latter  would  be  construed  by 
the  Department  of  State  as  an  inherent  difference.  At  all  events, 
it  would  seem  that  the  United  States  had  to  assume  inconsistent  posi- 
tions in  the  two  cases.  Jackson's  language  is  of  course  utterly  inde- 
fensible. If  it  is  true  that  Cannon  and  Groce  held  regular  commissions 
in  Estrada's  army,  the  Department  of  State  occupied  perhaps  a  more 
defensible  position  against  Nicaragua  than  they  did  in  the  earlier 
case  as  against  Great  Britain. 

§  368.  Unneutral  Supplies  and  Other  Aid. 

Aid  has  frequently  been  furnished  to  foreign  belligerent  governments 
or  revolutionary  parties  abroad.  Such  aid  when  furnished  by  a  neutral 
citizen  is  considered  as  in  violation  of  neutrality  and  operates  to  for- 
feit neutral  protection.  Thus,  Secretary  of  State  Seward  stated  that 
good  offices  will  be  refused 

"when  the  debt  .  .  .  was  incurred  to  aid  the  debtor  government  to 
make  war  on  a  country  with  which  the  United  States  was  at  peace."  ^ 

Two  important  cases  in  municipal  courts  have  had  an  important 
effect  in  laying  precedents  for  international  tribunals  on  the  question 
of  the  illegality  of  a  contract  to  render  aid  to  insurrectionary  govern- 
ments and  the  impossibility  of  recovery  by  a  person  so  aiding.  Thus, 
in  the  celebrated  case  of  Kennett  v.  Chambers,  in  which  American 
citizens  contracted  with  a  citizen  of  Texas  to  lend  money  in  the  war 
of  Texas  against  ^Mexico,  in  return  for  an  agreement  to  convey  certain 
lands  in  Texas,  Chief  Justice  Taney  held  that  not  only  had  the  Amer- 
ican citizen  by  advancing  such  money  violated  the  neutrality  laws 
of  the  United  States,  but  the  contract  itself  was  illegal  and  void  from 
the  beginning  and,  therefore,  unenforceable  in  a  court  of  the  United 
States.^ 

Likewise,  in  the  noted  case  of  De  Wutz  v.  Hendricks,^  the  English 

1  Mr.  Seward,  Sec'y  of  State,  to  Messrs.  Leavitt  &  Co.,  May  6,  1868,  Moore's  Dig. 
VI,  710. 

2  Kennett  v.  Chambers  (1852),  14  Howard,  38,  Scott's  Cases,  723;  De  Wutz  t>. 
Hendricks,  9  Moore  C.  P.  586,  Scott's  Cases,  p.  721.    See  also  Gill  v.  Oliver,  11  How- 


784  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

Court  of  Common  Pleas  decided  that  it  was  contrary  to  the  law  of 
nations  for  persons  residing  in  England  to  enter  into  engagements 
to  raise  money  by  way  of  loan  for  the  purpose  of  supporting  subjects 
of  a  foreign  state  in  arms  against  a  government  in  friendship  with 
England  and  that  no  right  of  action  attached  to  any  such  contract. 

In  the  case  of  Hargous  v.  Mexico/  in  which  claimant  supplied  Mexico, 
under  contract,  with  two  war  vessels,  the  commission  held  that  while 
Mexico  could  not  have  made  the  defense  of  the  illegality  of  the  contract, 
it  could  be  maintained  by  the  United  States  on  the  very  strongest 
ground  in  that  the  vessels  were  intended  for  service  against  the  United 
States  government. 

Numerous  cases  came  before  the  United  States-Mexican  Commis- 
sion of  1868  in  which  United  States  citizens  had  aided  Mexico  in  her 
struggles  for  independence  against  Spain  by  contracting  with  Mexican 
agents  in  the  United  States  to  send  emigrants  to  Mexico  and  assist 
in  the  raising  of  military  supplies  to  aid  its  armies.  The  claims  were 
usually  dismissed  on  the  ground  that  by  such  aid  to  Mexico  the  United 
States  citizen  had  forfeited  his  right  to  the  protection  of  his  govern- 
ment.^ 

Numerous  cases  have  come  before  other  commissions  in  which  the 
claim  was  dismissed  and  claimant's  national  protection  declared  for- 
feited on  the  ground  that  he  had  contributed  aid  either  by  way  of 
money  or  arms  to  a  revolutionary  party,^ 

ard,  529,  citing  Williams  v.  Oliver,  Maryland  Court  of  Appeals,  June,  1843.  See  also 
Kent's  Commentaries,  I,  116;  Jarvis  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston, 
149;  CucuUu  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3477  et  seq. 

>  Hargous  (U.  S.)  v.  Mexico,  Act  of  March  3,  1849,  Moore's  Arb.  1280-1283. 

2  Sturm  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2756-2757;  Brannin  (U.  S.) 
V.  Mexico,  July  4,  1868,  ibid.  2757;  Greene  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2756. 

'Rivas  y  Lamar  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's  Arb.  2781;  Springbok 
(Gt.  Brit.)  V.  U.  S.,  May  8, 1871,  ibid.  3921,  Hale,  117;  Raborg  (U.  S.)  v.  Peru,  Jan.  12, 
1863,  Moore's  Arb.  1613-1614;  Gros  (U.  S.)  v.  Mexico,  July  4,  1868,  ibid.  2771  (dic- 
tum, claimant  not  being  a  citizen  of  the  United  States);  Patterson  (U.  S.)  v.  Mexico, 
Act  of  Congress,  Mar.  3,  1849,  Moore's  Arb.  2780  (supplying  of  coal;  dictum,  claim- 
ant did  not  prove  ownership  of  the  vessel);  Vernon  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871, 
Moore's  Arb.  3304,  Hale,  81;  Isabel  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Hale,  114. 

But  where  such  aid,  in  the  shape  of  merchandise  sold,  was  given  to  revolutionists, 
the  owners  of  the  goods  being  ignorant  of  their  intended  destination  to  revolutionists, 


UNNEUTRAL   SUPPLIES   AND    OTHER   AID  785 

International  commissions  have  occasionally  made  an  exception 
to  the  rule  where  an  award  was  sought  against  the  belligerent  with 
whom  the  contract  was  made.  The  demands  of  equity  or  some  special 
acknowledgment  of  the  debt  by  the  defendant  government  was  usually- 
regarded  as  a  just  reason  for  an  award,  and  the  presumption  was  always 
entertained  that  by  presenting  the  claim  the  claimant  government 
had  waived  the  violation  of  its  own  law.  Such  exceptions  were  made 
in  a  number  of  claims  against  Mexico  arising  out  of  contracts  made 
in  the  United  States  with  General  Mina,  the  agent  of  the  Mexican 
government,  for  aid  to  Mexico  in  her  war  with  Spain.  While  under 
the  general  rule  these  claims  would  have  been  disallowed,  Mexico 
had  by  an  act  of  1825  acknowledged  its  liability  on  these  claims.  The 
domestic  commission  under  the  act  of  1849  held  that 

"this  new  obligation  was  not  obnoxious  to  the  objection  which  vitiated 
the  claim  arising  out  of  the  original  claim  and  has  since  been  recognized 
as  valid  and  binding  upon  that  government."  ^ 

In  the  case  of  Lake,^  an  American  citizen  had  made  great  sacrifices 
in  the  service  of  Mexico,  and  on  equitable  grounds  the  Mexican  com- 
missioner, Palacio,  considered  that  Mexico  ought  not  to  reject  the 
claim. 

The  unneutral  conduct  of  one  partner  seems  to  be  attributable 
generally  to  the  other  partner  in  all  transactions  arising  out  of  the 
partnership  relation  or  in  which  the  partnership  has  an  interest.^ 

Various  forms  of  unneutral  service  in  time  of  war,  e.  g.,  the  carriage 
of  enemy  dispatches  or  correspondence,  the  carriage  of  enemy  persons, 
repetition  of  signals,  etc.,  -render  the  neutral  liable  to  capture  by  the 

Duffield  (Umpire)  believed  (dictum)  that  it  did  not  cause  a  loss  of  national  protec- 
tion.   Kuminerow  (Germany)  v.  Venezuela,  Feb.  13,  May  7,  1903,  Ralston,  526. 

1  Meyer  (U.  S.)  v.  Mexico,  Domestic  Commission,  March  3,  1849,  Moore's  Arb. 
2390,  footnote  citing  cases  of  Porter  and  McRae.  Cases  before  Commission  under 
convention  of  April  11,  1839,  Moore's  Arb.  1243;  Parrott  (U.  S.)  v.  Mexico,  Mar.  3, 
1849,  Moore's  Arb.  2439;  Meade  (U.  S.)  v.  Mexico,  Moore's  Arb.  3430;  Gill  v.  Oliver's 
Executors,  11  How.  533;  Kunnnerow  (Germany)  v.  Venezuela,  Feb.  13,  May  7,  1903, 
Ralston,  526  (dictum;  aid  to  successful  revolutionists). 

2  Lake  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2754. 

»  McStea  (U.  S.)  v.  Great  Britain,  Act  of  June  5,  1882,  No.  1015,  Class  1,  Moore'a 
Arb.  2380.  But  a  corporation  was  not  affected  merely  by  the  disloyalty  of  its  officers. 
Officers,  etc.,  v.  U.  S.,  20  Ct.  CI.  18. 


786  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

wronged  belligerent,  under  the  universally  recognized  laws  of  war, 
and  necessarily  entail  a  forfeiture  of  national  protection.^  The  carriage 
of  contraband  goods  and  attempts  at  blockade  running  are  transac- 
tions which,  while  entailing  liability  to  capture,  are  not  considered 
as  unneutral  service. 

(d)  Aid  and  Comfort 

§  369.  Definition  of  "  Aid  and  Comfort." 

It  has  just  been  observed  that  various  forms  of  transactions,  by 
the  fact  that  they  render  aid  to  one  as  against  another  belligerent, 
constitute  unneutral  acts. 

The  protocols  of  mixed  and  domestic  commissions  occasionally 
provide  specifically  that  the  commission  shall  have  jurisdiction  over 
claims  of  such  citizens  as  had  not  voluntarily  given  aid  and  comfort 
to  the  enemy.  Thus,  the  protocol  of  January  15,  1880  between  France 
and  the  United  States,  the  protocol  of  the  United  States-Chilean 
commission  of  August  7,  1892,  the  Abandoned  or  Captured  Property 
Act  of  March  12,  1863  and  the  Act  of  March  3,  1871  establishing  the 
Southern  Claims  Commission,  excluded  from  the  benefits  of  their 
provisions  those  individuals  who  had  given  voluntary  aid  and  comfort 
to  the  enemy.  The  principle  was  expressed  as  follows  in  Carlisle  v. 
United  States,  in  the  case  of  aliens  domiciled  in  the  Confederate  states : 

"Those  aliens  who,  being  domiciled  in  the  country  prior  to  the  re- 
bellion gave  aid  and  comfort  to  the  rebellion  were  .  .  .  subject  to  be 
prosecuted  for  violation  of  the  laws  of  the  United  States  against  treason 
and  for  giving  aid  and  comfort  to  the  rebellion."  ^ 

The  principle  naturally  applied  to  aliens  who  after  the  outbreak  of 
the  war  gave  aid  and  comfort  to  the  belligerents.  The  Abandoned 
or  Captured  Property  Act  made  it  a  matter  of  preliminary  proof  for 
the  alien  to  show  that  he  had  given  no  aid  and  comfort  to  the  rebellion 
and  for  the  citizen  to  show  loyalty.^ 

One  of  the  most  important  international  cases  involving  the  construc- 
tion of  the  aid  and  comfort  clause  was  that  of  Grace  Brothers  before 

'  On  unneutral  service  see  Oppenheim,  II,  eh.  V,  pp.  515-532. 

'■'  Carlisle  v.  The  United  States,  1(5  Wall.  148. 

'  Carroll  v.  The  United  States,  13  Wall.  151 ;  Hill  i;.  The  United  States,  8  Ct.  01.  470. 


dp:finition  of  "aid  and  comfort"  787 

the  United  States-Chilean  commission  of  1892.  Claimants  had  fur- 
nished various  suppHes  to  the  Peruvian  government  in  its  war  with 
Chile,  including  coal  for  a  ship,  supplies  for  the  navy,  electrical  batteries 
for  the  army,  had  guaranteed  a  certain  person  the  payment  of  his 
services  for  the  remodeling  of  old  rifles  belonging  to  Peru,  and  advanced 
to  a  Peruvian  agent  in  the  United  States  money  to  purchase  arms. 
As  a  defense  to  the  jurisdictional  objection  that  they  had  voluntarily 
given  aid  and  comfort  to  the  enemies  of  Chile,  the  claimants  alleged 
that  the  supplies  were  furnished  by  virtue  of  a  contract  with  Peru 
made  prior  to  the  war,  that  the  supplies  furnished  were  not  contraband, 
that  as  neutral  citizens  they  had  the  right  to  carry  on  business  with 
Peru,  and  that  even  if  the  supplies  were  contraband,  the  only  penalty 
was  the  liability  to  seizure  while  in  transitu.  Commissioners  Clapardde 
and  Gana  ^  (Goode,  dissenting)  held  that  by  furnishing  articles  which  by 
their  nature  might  serve  directly  and  indirectly  in  the  war,  they  had 
voluntarily  given  aid  and  comfort  such  as  the  protocol  provided  for. 
Nor  does  it  seem  to  be  necessary  that  the  claimant  who  furnished 
supplies  to  such  enemy  shall  have  been  guilty  of  a  hostile  intention, 
for 

"willingness  to  give  aid  and  comfort  to  the  enemy  without  assuming 
a  hostile  character  towards  the  other  party  can  be  considered  as  estab- 
lished in  all  cases  in  which  he  who  commits  those  acts  in  his  sound  senses 
can  and  must  know  that  such  acts  involve  an  increase  of  the  strength  of 
one  of  the  belligerents  to  the  detriment  of  the  other." 

To  the  defense  of  previous  contract,  the  commissioners  answered : 

"The  state  of  war  is  a  case  of  superior  force  which  suspends,  modifies, 
or  alters  all  contracts.  ..." 

*  The  furnishing  of  electric  wire  and  batteries  for  the  use  of  the  reserve  corps  of 
the  army;  guaranteeing  a  certain  mechanic  in  the  employ  of  Peru  the  payment 
of  his  services  in  remodeling  rifles;  advancing  to  a  Peruvian  consul  general  in  the 
United  States  the  funds  necessary  to  attach  certain  Chilean  cargoes  of  nitrate;  the 
payment  of  the  bills  of  a  special  agent  of  Peru  engaged  in  the  purchase  of  arms  in 
the  United  States — were  all  considered  acts  of  voluntary  aid  and  comfort.  But 
where  the  property  was  surrendered  by  the  claimants  on  the  demand  of  the  Peruvian 
government,  where  the  property  (certain  launches)  would  have  been  taken  without 
the  owner's  consent,  it  cannot  be  considered  voluntary'  aid  and  comfort  (dictum). 
Doctrine  of  Clapar^de  and  Gana  in  the  case  of  the  Grace  Brothers  (U.  S.)  v.  Chile, 
August  7,  1892,  Moore's  Arb.  2781  et  seq. 


788  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

and  places  the  parties  in  the  free  and  unrestricted  position  they  held 
before  the  contract  was  made. 

The  payment  of  customs  duties  to  the  confederate  government 
on  certain  brandy  removed  from  the  custom  house  under  the  Con- 
federate regime  was  held  by  the  French-United  States  Commission 
of  1880  not  to  be  an  ''aid  and  comfort"  to  the  enemies  of  the  United 
States.^ 

Under  the  Abandoned  or  Captured  Property  Act  an  alien  suing 
to  recover  the  proceeds  of  captured  property  did  not  have  to  show 
loyalty,  but  it  was  necessary  to  show  that  he  had  not  voluntarily  given 
aid  or  comfort  to  the  rebellion." 

The  Supreme  Court  construed  the  meaning  of  the  words  "aid  and 
comfort"  as  follows: 

''The  words  'aid  and  comfort'  are  used  in  this  statute  in  the  same 
sense  they  are  in  the  clause  of  the  Constitution  defining  treason  (art.  3, 
sec.  3),  that  is  to  say,  in  their  hostile  sense.  The  acts  of  aid  and  com- 
fort which  will  defeat  a  suit  must  be  of  the  same  general  character  with 
those  necessary  to  convict  of  treason,  where  the  offense  consists  in  giving 
aid  and  comfort  to  the  enemies  of  the  United  States.  But  there  may  be 
aid  and  comfort  without  treason,  for  treason  is  a  breach  of  allegiance, 
and  can  be  committed  by  him  only  who  owes  allegiance."  ...  "A 
claimant  to  be  excluded  [under  the  Abandoned  or  Captured  Property 
Act]  need  not  have  been  a  traitor;  it  is  sufficient  if  he  has  done  that  which 
would  have  made  him  a  traitor  if  he  had  owed  allegiance  to  the  United 
States."  3 

Among  others,  the  following  acts  have  been  considered  as  voluntary 
;  id  and  comfort  to  the  enemy: 

"Standing  guard  over  federal  prisoners  and  aiding  in  the  local  de- 
fence of  Richmond;  ^  commercial  transactions  within  the  confederate 
lines  by  the  citizen  of  a  loyal  state;  ^  fitting  out  a  vessel  in  a  confederate 

'  De  Forge  et  Fils  (France)  v.  The  United  States,  January  15,  1880,  Moore's  Arb. 
2781 ;  BoutweU's  Rep.  132.  See  also  Mr.  Hay,  Sec'y  of  State  to  Mr.  Merry,  April  17, 
1899,  For.  Rol,  1899,  p.  566. 

2  Byrnes  v.  The  United  States,  3  Ct.  CI.  238;  McElhose  v.  The  United  States,  3  Ct. 
C;i.  240;  limning  p.  The  United  States,  3  Ct.  CI.  242;  Hill  v.  The  United  States,  8  Ct. 
CI.  470;  Carhsle  v.  The  United  States,  6  Ct.  CI.  398;  16  WaU.  147. 

^  Young  1'.  The  United  States,  97  U.  S.  39,  63. 

^  Keeper  v.  The  United  States,  3  Ct.  CI.  74. 

'  Geering  and  Richardson  v.  The  United  States,  3  Ct.  CI.  165. 


DEFINITION   OF    "aID    AND    COMFORT "  789 

port  and  running  a  blockade;  ^  dealing  in  goods,  by  a  citizen  of  a  loyal 
state,  which  he  knows  to  have  run  the  blockade,  and  subscribing  to 
a  confederate  loan;  -  becoming  surety  on  the  bonds  of  Confederate 
officers;  ^  being  voluntarily  connected  with  and  having  stocks  in  com- 
panies organized  to  run  a  blockade;  ^  moving  further  south  on  the 
approach  of  the  Union  forces  to  prevent  the  emancipation  of  the  owner's 
slaves;^  manufacturing  and  selling  salt-petre  to  the  Confederates;^ 
trading  by  a  non-resident  alien  with  the  Confederacy  and  giving  them 
cannons  and  munitions  of  war;  ^  purchasing  permission  from  the  Con- 
federates to  export  cotton;^  purchasing  cotton  from  the  Confederates, 
knowing  the  money  was  to  be  used  to  sustain  the  rebellion.^  The 
drawing  of  Confederate  bonds  was  held  to  be  relieving  the  enemy 
with  money  and  a  bar  to  a  claim  before  the  United  States-British 
Commission  of  1871.^°    The  aid  must,  of  course,  be  voluntary.^^ 

The  general  amnesty  proclamation  did  not  extend  to  non-resident 
aliens  who  had  given  aid  and  comfort  to  the  rebellion.  Such  conduct 
on  the  part  of  an  alien  was  not  an  offense  against  the  United  States, 
and  the  proclamation  extended  only  to  offenders  against  the  laws 

1  Geering  and  Richardson  v.  The  United  States,  3  Ct.  CI.  165. 

2  Stark  !'.  The  United  States,  4  Ct.  CI.  280;  Dubois  (France)  i>.  U.  S.,  Jan.  15,  1880, 
Moore's  Arb.  3742,  Boutwell's  Rep.  128  (claimant  knew  his  purchase  of  bonds 
would  aid  Confederacy).  But  in  Rochereau,  ibul.  3739,  Boutwell's  Rep.  124,  non- 
resident French  partner  had  no  knowledge  of  the  purchase  of  the  bond,  and  his 
share  of  the  claim  was  allowed. 

» U.  S.  V.  Padelford,  9  Wall.  531;  4  Ct.  CI.  316. 

*  Bates  V.  The  United  States,  4  Ct.  CI.  569. 

5  Armstrong  v.  The  United  States,  13  Wall.  154;  5  Ct.  CI.  623. 

6  Carlisle  and  Henderson  v.  The  United  States,  16  Wall.  147;  6  Ct.  CI.  398. 

7  Young  IK  The  United  States,  97  U.  S.  39;  12  Ct.  CI.  648. 

*  Radich  v.  Hutchins,  95  U.  S.  210;  see  also  Moore's  Dig.  VI,  625.  But  paying 
for  permission  to  remove  lumber  was  held,  by  an  equally  divided  court,  "aid  and 
comfort"  in  the  case  of  Bauriedel,  Xo.  239,  before  the  Spanish  Treaty  Claims  Com- 
mission, Explanatory  Notes,  Briefs,  XXIV,  126. 

9  Sprott  V.  U.  S.,  20  Wall.  459.  In  Laurent  (Gt.  Brit.)  v.  U.  S.,  Feb.  8, 1853,  Moore's 
Arb.  2671,  the  better  ground  for  the  disallowance  of  the  claim  would  have  been  that 
by  purchasing  church  property  from  the  Mexican  government,  they  had  rendered 
aid  and  comfort  to  the  enemy,  and  thus  engaged  in  an  unneutral  transaction.  See 
Lapradelle  &  Politis'  Recueil,  I,  p.  675. 

1"  Nicolson  (Gt.  Brit.)  v.  The  United  States,  May  8,  1871,  Moore's  Arb.  3298, 
Hale,  77. 

"  U.  S.  V.  Padelford,  9  WaU.  531. 


79U  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

of  the  United  States.^  Nor  did  a  pardon  to  a  citizen,  disloyal  during 
the  war,  restore  his  right  to  maintain  a  claim  against  the  government.^ 
The  Southern  Claims  Commission  required  claimants  to  prove 
that  they  had  remained  "loyal  adherents  to  the  cause  and  the  gov- 
ernment of  the  United  States  during  the  war,"  whereas  the  Act  estab- 
lishing the  Court  of  Alabama  Claims  required  an  allegation  that  they 
had  borne  "true  allegiance  to  the  United  States."  By  the  former 
commission,  neutrality,  even  when  established,  was  not  held  to  con- 
stitute "loyal  adherence"  to  the  United  States,  whereas  the  Alabama 
court  accepted  the  negative  declaration  that  claimants  had  not  in 
any  manner  aided  or  assisted  the  rebellion.  The  Southern  Claims 
Commission  considered  the  following  to  be  disloyal  acts:  voting  for 
session  or  secession  candidates;  residing  or  removing  within  the  Con- 
federate lines  as  a  matter  of  choice;  holding  office  under  the  Confed- 
eracy^; service  in  the  Confederate  army  or  navy,  personally  or  by 
substitute;  furnishing  supplies  to  the  Confederacy;  arming  or  equip- 
ping persons  entering  the  Confederate  service;  engaging  in  business 
intended  or  calculated  to  aid  the  Confederate  cause;  subscribing  to 
Confederate  loans,  or  selling  cotton  or  other  produce  to  the  Confederate 
government  in  aid  of  its  finances;  or  doing  any  other  thing  of  a  nature 
to  aid  the  Confederate  and  injure  the  Union  cause.^ 

§  370.  Acts  which  do  not  Constitute  "  Aid  and  Comfort." 

The  following  have  been  held  not  to  be  acts  of  voluntary  aid  and 
comfort : 

Joining  a  company  formed  in  a  disloyal  state  to  carry  out  cotton 
through  the  blockade,  with  the  permission  of  the  United  States;  * 
voluntary  patrol  duty  in  a  home  guard,  in  the  nature  of  police  duty, 
on  the  part  of  one  otherwise  showed  to  be  loyal;  ^  acts  not  intended 
as  aid  and  comfort  to  the  enemy  and  committed  under  fear  and  appre- 

1  Young  and  Collie  v.  The  United  States,  97  U.  S.  39. 

2  Hart  V.  The  United  States,  15  Ct.  CI.  414. 

'  7th  Gen.  Rep.  of  the  Commissioners  of  Claims,  Act  of  March  3,  1871,  H.  Misc. 
Doc.  4,  4.5th  Cong.,  2nd  sess.,  .5-0;  Rodocanochi  Sons  &  Co.  v.  U.  S.,  Act  of  June 
2:3,  1874,  Moore's  Arb.  2359. 

*  Lynch  v.  The  United  States,  3  Ct.  CI.  392. 

'  Miller  and  Fellow  v.  The  United  States,  4  Ct.  CI.  288. 


ACTS    WHICH    DO    NOT   CONSTITUTE    "aID    AND   COMFORT"  791 

hension  of  danger  to  the  person  and  property  of  claimant;  ^  removing 
the  family  of  a  loyal  citizen  surrounded  by  contending  armies  to  a 
place  of  safety,  though  within  the  Confederate  lines;  -  compulsory 
detention  of  the  person  and  property  of  a  loyal  citizen  in  an  insur- 
rectionary state,  his  subsequent  sale  of  property  (horses)  and  the 
investment  of  the  proceeds  in  cotton;  ^  entering  a  Confederate  arsenal 
as  a  workman  without  pay  to  avoid  conscription,  in  fact,  payment 
for  the  appointment,  where  the  loyalty  otherwise  was  estabUshed;  * 
yielding  passive  obedience  to  the  de  facto  Confederate  government 
in  civil  and  local  matters;  ^  purchase  by  a  non-resident  alien  of  cotton 
in  the  disloyal  states  for  ordinary  business  purposes  through  a  com- 
mercial house  within  the  enemy's  lines  and  the  acceptance  and  payment 
of  drafts  for  the  purchase  price  of  the  cotton;  ^  writing  an  unsent  letter 
to  the  head  of  the  Confederate  government  offering  the  service  of  the 
writer,  an  aUen  resident ;  ^  bribing  a  Confederate  officer  by  giving 
him  cotton  to  prevent  the  confiscation  or  destruction  of  the  balance;  * 
joining  in  a  proposed  blockade  running  enterprise  which  was  not  to 
be  operated  until  the  United  States  gave  their  sanction,  such  sanction 
not  having  been  given; '  purchase  of  cotton  by  a  non-resident  alien 
through  an  agent  in  the  enemy's  territory,  though  he  was  engaged  in 
blockade  running;  ^°  subscribing  money  to  a  blockade  running  enterprise 
where  it  does  not  appear  that  the  blockade  was  run  or  attempted  to 
be  run.^^ 

1  Ayres  v.  The  United  States,  4  Ct.  CI.  422. 

2  Hayden  v.  The  United  States,  4  Ct.  CI.  475. 

*  Foster  v.  The  United  States,  5  Ct.  CI.  412.  See  also  Spain  v.  The  United  States, 
5  Ct.  CI.  598,  these  transactions  not  being  in  violation  of  the  non-intercourse  laws. 

*  Koester  v.  The  United  States,  5  Ct.  CI.  642. 
s  Price  V.  The  United  States,  5  Ct.  CI.  706. 

«  Harrison  v.  The  United  States,  6  Ct.  CI.  323. 

■  Medway  i'.  The  United  States,  6  Ct.  CI.  421. 

^  Coogan  V.  The  United  States,  7  Ct.  CI.  510.  This  transaction  though  invalid 
under  the  laws  of  the  Confederacy  was  not  thereby  invalid  under  the  laws  of  the 
United  States. 

9  Austell  V.  The  United  States,  7  Ct.  CI.  599. 

'"Collie  V.  The  United  States,  9  Ct.  CI.  431;  94  U.  S.  258.  Blockade  running  in 
munitions  of  war  intended  for  the  Confederates  would,  however,  be  voluntary  aid 
and  comfort.    Young  v.  U.  S.  (1877),  97  U.  S.  39. 

11  HiU  V.  The  United  States,  8  Ct.  CI.  470. 


CHAPTER  IV 

FORFEITURE  OF  PROTECTION  BY  ACT  OF  CITIZEN— Con- 
tinued.    RENUNCIATION  OF  PROTECTION 

EXPRESS   RENUNCIATION   BY   CONTRACT 

§  371.  The  So-called  Calvo  Clause. 

Naturalization  abroad  is  perhaps  the  most  binding  form  of  con- 
tractual renunciation  of  citizenship  and  protection.  -Ar-more  subtle 
form  of  renouncing  protection  consists  in  the  incorporation  in  contracts 
between  the  local  government  and  a  foreigner  of  a  stipulation  by  which 
the  foreigner  agrees  to  bring  his  disputes  and  differences  arising  out 
of  the  contract  before  the  local  courts  exclusively,  with  the  further 
express  or  implied  agreement  that  he  renounces  his  right  to  call  upon 
his  own  government  for  protection  in  all  matters  arising  out  of  the 
contract.  This  form  of  contractual  renunciation  of  diplomatic  protec- 
tion arises  out  of  a  doctrine  advanced  by  the  celebrated  South  American 
publicist,  Calvo,  and  in  its  broadest  sense  it  posits  the  principle  that 
no  nation  ought  to  intervene,  diplomatically  or  otherwise,  against 
another,  to  enforce  its  citizen's  private  claims  of  a  pecuniary  nature — 
a  principle  which  has  been  resorted  to  frequently  by  the  South  American 
countries  as  a  preventive  measure  of  defense  against  the  insistent 
demands  of  foreign  countries  for  the  payment  of  private  claims  due 
their  citizens.  In  Calvo's  work  on  international  law,  these  principles 
are  expressed  as  follows: 

"America  as  well  as  Europe  is  inhabited  today  by  free  and  inde- 
pendent nations,  whose  sovereign  existence  has  the  right  to  the  same 
respect,  and  whose  internal  public  law  does  not  admit  of  intervention 
of  any  sort  on  the  part  of  foreign  peoples,  whoever  they  may  be."  (5th 
ed.,  I,  §  204,  p.  350.) 

He  condemns  armed  and  diplomatic  intervention  with  equal  sever- 
ity (I,  §  110,  p.  267), 

792 


THE    SO-CALLED    CALVO   CLAUSE  793 

"Aside  from  political  motives  these  interventions  have  nearly  always 
had  as  apparent  pretexts,  injuries  to  private  interests,  claims  and  de- 
mands for  pecuniary  indemnities  in  behalf  of  subjects.  .  .  .  According 
to  strict  international  law,  the  recovery  of  debts  and  the  pursuit  of 
private  claims  does  not  justify  de  piano  the  armed  intervention  of  gov- 
ernments, and,  since  European  states  invariably  follow  this  rule  in  their 
reciprocal  relations,  there  is  no  reason  why  they  should  not  also  impose 
it  upon  themselves  in  their  relations  with  nations  of  the  new  world." 
(I,   §205,   pp.   350-351.) 

"It  is  certain  that  aliens  who  establish  themselves  in  a  country  have 
the  same  right  to  protection  as  nationals,  but  they  ought  not  to  lay  claim 
to  a  protection  more  extended.  If  they  suffer  any  wrong,  they  ought  to 
count  on  the  government  of  the  country  prosecuting  the  delinquents, 
and  not  claim  from  the  state  to  which  the  authors  of  the  violence  belong 
an}^  pecuniary  indemnity."    (VI,  §  256,  p.  231.) 

"  The  rule  that  in  more  than  one  case  it  has  been  attempted  to  impose 
on  American  states  is  that  foreigners  merit  more  regard  and  privileges 
more  marked  and  extended  than  those  accorded  even  to  the  nationals  of 
the  country  where  they  reside."     (Ill,  §  1278,  p.  140.) 

While  the  last  two  propositions  were  made  with  specific  reference 
to  redress  for  injuries  arising  out  of  civil  war  and  acts  of  ^'^olence, 
the  inference  drawn  from  the  whole  text,  read  together  with  the  general 
principle  that  foreigners  are  subject  to  the  local  law  and  must  submit 
their  disputes  to  local  courts,  has  given  the  Spanish-American  countries 
a  basis  to  assert  the  doctrine  that  in  his  private  litigation  the  alien 
must  exhaust  his  local  remedies  before  invoking  diplomatic  interposition 
and  that  in  his  claims  against  the  state  he  must  make  the  local  courts 
his  final  forum.  These  states  do  generalh^,  though  not  always,  admit; 
the  rule  that  where  there  is  a  denial  of  justice,  recourse  to  diplomatic 
interposition  is  permissible.  They  have  written  these  principles  into 
their  constitutions,  statutes  and  treaties,  and  in  this  form  they  vnW 
receive  more  critical  attention  in  Chapter  VII,  in  which  we  shall 
deal  with  the  attempts  by  municipal  legislation  and  bj^  treaty  to  limit 
diplomatic  interposition. 

The  whole  doctrine  of  the  final  jurisdiction  of  the  local  courts  over 
the  claims  of  aliens,  with  a  denial  of  the  right  to  diplomatic  recourse, 
has  received  the  name  of  the  Calvo  doctrine.^     The  so-called  Drago 

*  Calvo,  Le  droit  international,  §§  204-.5.  On  the  Calvo  Doctrine,  see  Amos  S. 
Hershey,  in  1  A.  J.  I.  L.  (1907),  pp.  26-45;  Percy  Bordwell  in  18  Green  Bag  (1906), 


794  THE    DIPLOMATIC    PROIECTION    OF   CITIZENS   ABROAD 

Doctrine  and  the  Porter  proposition  adopted  at  the  Hague  Conference 
of  1907  have  been  examined  under  the  general  subject  of  contract  claims.^ 

§  372.  Its  Incorporation  in  Concession-Contracts  in  Latin-America. 

Of  the  three  principal  classes  of  claims  in  which  Latin-American 
States  have  sought  to  limit  the  diplomatic  protection  of  foreigners, 
namely:  first,  claims  arising  out  of  injuries  received  in  civil  wars; 
secondly,  claims  based  upon  acts  of  violence  and  oppression,  such  as 
false  arrest,  imprisonment,  and  expulsion;  and,  thirdly,  claims  arising 
out  of  concession-contracts  concluded  with  aliens,  the  subject  of  our 
present  inquiry — the  contractual  renunciation  of  diplomatic  protec- 
tion— arises  generally  in  connection  with  concession-contracts  granted 
by  governments  to  foreigners,  although  there  have  occasionally  been 
cases  of  personal  injury  or  other  forms  of  contract  in  which  there  has 
been  an  express  waiver  of  the  alien's  right  to  national  protection. 

The  European  states  having  for  the  most  part  been  unwilling  to 
conclude  treaties  stipulating  for  the  complete  surrender  of  private 
claims  of  their  citizens  to  the  local  courts,  the  Latin-American  states, 
on  the  authority  of  Calvo  and  the  general  international  law  applied 
in  Europe,  have  sought  other  means  to  attain  their  end  and  secure 
freedom  from  the  constant  employment  of  diplomatic  measures  of 
coercion  to  which  they  find  themselves  subject.^ 

This  they  have  done  by  establishing  certain  limitations  upon  pro- 
tection in  their  constitutions,  laws,  treaties  and  contracts  with  for- 
eigners. They  assert  the  right  to  do  this  on  the  legal  grounds  of  in- 
dependence, sovereignty,  complete  territorial  jurisdiction  and  the 
principle,  generally  recognized,  that  individuals  who  establish  them- 

377-382;  Edgington,  T.  B.,  The  Monroe  doctrine,  Boston,  1904,  pp.  218-260;  Crich- 
field,  G.  W.,  American  Supremacy,  New  York,  1908,  Vol.  II,  39  et  seq. 

1  Supra,  §§  1 19  et  seq. 

2  Pradier-Fodere,  I,  §§  204r-,5;  Calvo,  I,  §§  204-5;  Despagnet,  Cours  de  droit  in- 
ternational public,  2d  ed.,  1899,  p.  197;  2  R.  G.  D.  I.  P.  (1895),  341. 

As  early  as  1852  the  Venezuelan  Govertunent  had  endeavored  to  obtain  an  agree- 
ment among  the  Latin-American  states  not  to  recognize  any  of  the  claims  presented 
by  foreign  governments  in  matters  of  private  interest.  Mr.  Leocardio  Guzman 
was  charged  at  Lima  and  other  capitals  with  a  mission  whose  object  was,  it  was  said, 
to  prepare  an  entente  of  the  American  states  on  this  point.  Annuaire  des  deux  mondea, 
Vol.  3,  1852-3,  p.  749,  cited  in  4  R.  G.  D.  I.  P.  (1897),  227-228. 


ITS  INCORPORATION  IN    CONCESSION-CONTRACTS  IN  LATIN-AMERICA      795 

selves  in  a  foreign  state  must  submit  to  the  local  law.  In  this  conten- 
tion they  are  supported  by  some  well-known  publicists,  particularly 
Calvo/  Pradier-Fodere,^  Bluntschh,^  Seijas/  and  Fiore.^ 

Since  1886  many  of  these  states  have  incorporated  into  their  consti- 
tutions and  laws  a  provision  that  every  contract  concluded  between 
the  government  and  an  alien  shall  bear  the  clause  that  the  foreigner 
"renounces  all  right  to  prefer  a  diplomatic  claim  in  regard  to  rights 
and  obligations  derived  from  the  contract,"  or  else  that  "all  doubts 
and  disputes"  arising  under  it  "shall  be  submitted  to  the  local  courts 
without  right  to  claim  [the]  diplomatic  interposition  of  the  alien's 
government."  ^ 

1  Calvo,  I,  §§  204-5,  pp.  3o(>-351,  §  1278  et  seq.,  Ill,  140  el  seq.,  VI,  §  256,  p.  231. 

2  Pradier-Fodere,  §§204-205;  §§402-403,  §1363  et  seq.  "But  in  regard  to  the 
duty  of  protecting  its  nationals,  we  must  posit  certain  rules.  We  must  remember 
that  when  individuals  establish  themselves  in  a  foreign  country,  they  submit  tacitly 
to  its  laws,  and  must  make  use  of  the  means  of  redress  open  to  the  inhabitants, 
without  being  placed  in  a  better  position  than  natives  of  the  country.  .  .  .  When 
the  local  courts  have  decided  a  case,  the  alien  and  his  government  cannot  complain, 
if  the  alien  has  not  been  the  victim  of  violations  of  international  law,  of  arbitrary 
procedure  or  denial  of  justice  on  the  part  of  the  local  authorities,  of  odious  discrimi- 
nations, of  penalties  harsher  than  those  inflicted  on  nationals  .  .  .  and  finally,  if 
there  has  been  no  violation  of  the  provisions  of  public  treaties  in  force  between  the 
two  governments.    (§  403.) 

'  Bluntschli,  Le  droit  international  codifie,  5th  ed.,  by  C.  Lardj',  Paris,  1895, 
§§  380,  386,  388. 

*  Seijas,  El  derecho  international.  III,  p.  308  et  seq.;  IV,  pp.  507-514  and  opinions 
there  cited. 

*  Fiore,  P.,  Nouveau  droit  international  public,  Paris,  1885,  Antoines'  translation, 
§§  648-657. 

Fiore  believes  that  protection  is  unjustifiable  w'hen  its  object  is  to  obtain  for  sub- 
jects abroad  a  privileged  position.  He  holds  that  if,  for  reasons  of  State,  the  con- 
stituted authorities  of  a  country  enact  measures  applying  to  the  whole  population, 
but  which  may  seem  harsh  to  foreigners,  foreign  governments  have  no  right  to  en- 
deavor to  reUeve  their  subjects  in  such  cases  from  burdens  which  all  the  inhabitants 
must  bear  (§  648).  He  justifies  protection  of  the  interests  of  an  individual  only 
where  the  foreign  government  acts  arbitrarily  towards  the  alien  in  violating  a  prin- 
ciple of  law,  i.  e.,  only  when  it  deprives  aliens  of  the  enjoyment  of  civil  rights,  etc. 
(§649). 

Antoine,  Fiore's  translator,  believes  that  when  a  state  treats  aliens  in  a  prejudicial 
manner  by  laws  which  are  in  derogation  of  the  usage  of  civilized  countries  of  our 
time,  intervention  is  legitimate.  He  thus  justifies  the  intervention  of  France  in  1838 
in  Buenos  Ayres  and  Mexico. 

6  Ecuador,  constitution.  Art.  38,  Rodriguez,  American  Constitutions,  II,  283, 


796  THE   DIPLOMATIC   PROTECTION   OF  CITIZENS  ABROAD 

The  general  policy  of  the  United  States  and  of  one  or  two  other 
countries  ^  in  the  matter  of  contract  claims  has  already  been  discussed, 
and  it  has  been  observed  that  in  ordinary  cases  arising  out  of  contract 
these  countries  have  declined  their  diplomatic  interposition, — except 
in  case  of  denial  of  justice — so  that  the  clause  renouncing  diplomatic 
protection  in  these  cases  may  be  regarded  as  merely  confirmatory 
of  the  general  attitude  assumed  by  these  states.^  As  a  rule,  the  policy 
of  the  United  States  has  been  not  to  interfere  with  the  right  of  a  foreign 
government  to  prescribe  the  terms  of  concessions  which  it  may  grant 
to  American  citizens  to  carry  on  business  within  its  territory,  and 
after  a  concession  in  which  a  certain  privilege  is  denied  has  been  ac- 
cepted, the  United  States  will  not  demand  the  annulment  of  the  provi- 
sion.^ Unless  the  foreign  state  has  perpetrated  upon  its  citizen  some 
gross  violation  of  the  rights  of  the  concessionary,  usually  embraced 
in  the  category  of  a  denial  of  justice,  or  confiscatory  breach  of  the 
contract,  the  United  States  has  declined  its  official  interposition  to 
Americans  contracting  with  foreign  governments  or  individuals,  al- 
though good  offices  are  generally  extended.^ 

4  R.  G.  D.  1.  P.  (1897),  228.  See  also  Ecuador,  law  of  August  25,  1892,  Art.  14,  84 
St.  Pap.  646;  Venezuela,  constitution,  Art.  124,  Rodriguez,  I,  230-1;  Colombia,  law 
of  November  26,  1888,  Art.  15,  79  St.  Pap.  167  el  seq. 

See  letter  of  Secretary  of  State  Bayard,  to  Mr.  Straus,  Minister  to  Turkey,  June  28, 
1888,  For.  Rel.,  1888,  pt.  2,  p.  1599,  Moore's  Dig.  VI,  296-7,  with  reference  to  a 
law  of  Turkey  of  January  10,  1888,  Art.  5,  providing  that  foreigners  shall  not  be 
permitted  to  set  up  printing  offices  in  Turkey  unless  by  formal  declaration  they 
renounce  the  i)rivileges  and  immunities  of  foreigners. 

'  Italy,  for  example.  For  the  policy  of  Italy  see  4  R.  G.  D.  I.  P.  (1897),  405-406, 
citing  notes  of  Italian  Minister  of  Foreign  Affairs.  Nevertheless,  it  may  be  doubted 
whether  Italy  considers  this  a  general  policy. 

^  Although  the  United  States  has  usually  not  declined  to  exercise  good  offices. 
See  Moore's  Dig.  VI,  705  et  seq. 

■•  Mr.  Hay  to  Mr.  Powell,  Minister  to  Haiti,  April  1,  1899,  Moore's  Dig. 
VI,  289. 

'  Mr.  F.  W.  Seward,  Act'g  Sec'y  of  State,  to  Mr.  Logan,  April  15,  1879,  Moore's 
Dig.  VI,  293;  Statement  of  Mr.  Hay,  Sec'y  of  State,  in  the  case  of  Salvador  Com- 
mercial Company  (U.  S.)  v.  Salvador,  Moore's  Dig.  VI,  731-732,  For.  Rel.,  1902, 
})p.  839,  871;  Mr.  Olney,  Sec'y  of  State,  in  claim  of  North  and  South  American 
Construction  Company  v.  Chile,  Moore's  Dig.  VI,  pp.  728-729,  For.  Rel.,  1895, 
pt.  1,  p.  83;  Calvo,  op.  cit.,  VI,  §  366,  p.  351;  McMurdo's  case  (U.  S.)  v.  Portugal, 
Moore's  Arb.  1865-1899,  Moore's  Dig.  VI,  727-728,  297. 


ITS   INEFFECTIVENESS   IN   PREVENTING   INTERPOSITION  797 

§  373.  Its  Ineffectiveness  in  Preventing  Interposition.  Practice  of  the 
United  States. 
In  some  cases,  however,  interposition  has  been  made  dependent 
upon  the  absence  of  any  renunciation  on  the  part  of  the  citizen  of  the 
privilege  of  appealing  to  his  own  government,  and  Secretary  of  State 
Fish  in  one  case  believed  himself  barred  from  interfering  where  such 
a  stipulation  had  been  entered  into  by  the  citizen.^  This  attitude, 
however,  is  a  distinct  exception  to  the  general  practice  of  the  Depart- 
ment of  State.  The  position  now  uniformly  assumed  is  perhaps  best 
expressed  in  an  instruction  of  Secretary  of  State  Bayard  in  1888: 

"This  government  cannot  admit  that  its  citizens  can,  merely  by  mak- 
ing contracts  with  foreign  powers,  or  by  other  methods  not  amounting 
to  an  act  of  expatriation  or  a  deliberate  abandonment  of  American 
citizenship,  destroy  their  dependence  upon  it  or  its  obligations  to  pro- 
tect them  in  case  of  a  denial  of  justice."  ^ 

Mr.  Gresham,  Secretary  of  State,  interpreted  the  clause  of  the  Vene- 
zuelan constitution  to  the  effect  that 

"in  every  contract  of  public  interest  there  shall  be  inserted  the  clause 
'that  doubts  and  controversies  which  may  arise  regarding  its  meaning 
and  execution  shall  be  decided  by  the  Venezuelan  tribunals  and  accord- 
ing to  the  L'lws  of  the  Republic,  and  in  no  case  can  such  contracts  be  a 
cause  for  international  claims'" 

to  mean  that  the  party  claiming  under  the  contract 

"agrees  to  invoke  for  the  protection  of  his  rights  only  the  authorities, 
judicial  or  otherwise,  of  the  country  where  the  contract  is  made.  Until 
he  has  done  this,  and,  unless  having  done  this,  justice  is  plainly  denied 
him,  he  cannot  invoke  the  diplomatic  intervention  of  his  own  country 
for  redress.  But  if  his  application  to  the  authorities  of  the  country 
where  the  contract  is  made  results  in  the  palpable  denial  of  justice,  or 
in  a  plainly  unjust  discrimination  against  the  applicant  as  an  American 
citizen,  the  clause  above  quoted  would  hardly  be  construed  to  prevent  an 
appeal  for  diplomatic  intervention  if  such  intervention  would  otherwise 
be  allowable  under  the  rules  of  international  law."  ^ 

'  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Butler,  Oct.  5,  1871,  Moore's  Dig.  VI,  293. 

'  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Buck,  Minister  to  Peru,  Feb.  15,  1888,  Moore's 
Dig.  VI,  294;  Mr.  Bayard  to  Mr.  Scott,  Minister  to  Venezuela,  June  23,  1887,  Moore's 
Dig.  VI,  294;  Mr.  Bayard  to  Mr.  Hall,  Minister  to  Central  America,  March  27,  1888, 
For.  Rel.,  1888,  I,  1.37;  Mr.  .\dee,  Act'g  Sec'y  of  State,  to  Mr.  Partridge,  Minister 
to  Venezuela,  .luly  26,  1893,  For.  Rel.,  1893,  pp.  734,  735. 

»  Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Crawford,  Sept.  4,  1893,  Moore'e  Dig.  VI, 
299-300. 


798  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

By  the  last  clause  Mr.  Gresham  probably  meant  that  the  exhaustion 
of  local  remedies  and  a  denial  of  justice  are  conditions  precedent  to 
diplomatic  intervention.  With  this  reservation,  therefore,  that  the 
citizen  must  not  suffer  a  denial  of  justice,  the  Department  of  State 
has  upheld  the  right  of  the  citizen  to  stipulate  for  local  courts  as  an 
appropriate  forum  for  his  disputes. 

Where  the  contract  stipulation  has  attempted  to  go  further  and 
completely  oust  the  right  of  the  government  to  intervene  under  all 
circumstances  and  to  foreclose  the  citizen's  right  of  appeal  even  in 
a  case  of  denial  of  justice,  the  Department  of  State  has  denied  the 
vaUdity  of  such  contractual  renunciation.    As  Mr.  Bayard  stated : 

"It  is  not  competent  to  a  citizen  to  divest  himself  of  any  part  of 
his  inherent  right  to  protection  or  to  impair  the  duty  of  his  government 
to  protect  him;"  » 

and  furthermore  that 

"no  agreement  by  a  citizen  to  surrender  the  right  to  call  on  his  Gov- 
ernment for  protection  is  valid  either  in  international  or  municipal 
law."  ^ 

§  374.  Executive  Views  as  to  the  Renunciation  of  Protection  or  In- 
demnity. 

The  subtle  measure  adopted  by  Mexico  in  its  railroad  grants,  by 
the  terms  of  which  oflEicers  and  employees  of  its  roads  are  declared 
amenable  to  the  laws  as  Mexicans  and  are  inhibited  from  pleading 
rights  of  alien  protection  met  with  a  similar  objection  by  Mr.  Bayard. 
Such  service  in  Mexico  was  deemed  a  contract,  a  condition  of  which 
was  the  surrender  by  the  employees  of  their  right  to  invoke  diplomatic 
protection.  While  considering  that  alien  employees  became  thereby 
"entitled  to  justice  in  Mexico  in  lieu  of  the  broader  claims  to  inter- 
national justice,"  nevertheless,  "in  case  of  a  denial  of  justice,  the 
obligation  of  this  government  to  protect  [its  citizens]  remains  unim- 
paired." ^ 

1  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Straus,  Minister  to  Turkey,  June  28,  1888, 
■  For.  Rel,  1888,  v.  2,  p.  1519.    See  also  Mr.  Wilson,  Act'g  Sec'y  of  State,  to  Mr. 

Hibben,  Charge,  May  19,  1909,  For.  Rel.,  1909,  p.  222. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Hill,  Feb.  16,  1887,  For.  Rel,  1887,  p.  100. 

'  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Morgan,  Minister  to  Mexico,  May  26,  1885, 
Moore's  Dig.  VI,  294. 


EXECUTIVE  VIEWS   ON   RENUNCIATION   OF   PROTECTION  799 

Where  there  have  been  confiscatory  breaches  of  contract,  it  has 
been  noted  that  the  government  has  not  considered  itself  hampered 
by  its  general  policy  of  non-intervention  in  contract  claims  and  both 
the  Department  and  international  commissions  have  in  such  cases 
relieved  claimants  from  the  obligation  of  their  stipulation  inhibiting 
them  from  invoking  the  diplomatic  protection  of  their  own  government. 

It  has  already  been  observed  ^  that  the  government  may  prosecute 
a  claim  arising  out  of  an  injury  to  a  citizen,  notwithstanding  the  fact 
that  the  citizen  renounces  his  right  to  an  indemnity,  the  principle 
being  explainable  on  the  theory  that  the  injury  to  the  citizen  gives 
rise  to  two  independent  causes  of  action,  one  of  the  state,  the  other 
of  the  citizen.  Nevertheless,  unless  the  offense  is  particularly  flagrant 
or  may  be  deemed  a  national  affront,  the  individual's  waiver  of  a 
right  to  indemnity  weakens  the  moral,  if  not  the  legal,  right  of  his 
government  to  demand  reparation,  and  the  government  may  well 
consider  itself  justified  in  desisting  from  pressing  a  claim  waived  by 
the  individual  who  actually  sustained  injury,  as  Great  Britain  did 
in  the  Jencken  claim  against  Spain.  As  will  be  noted  presently,  an 
international  arbitral  tribunal  has  regarded  a  private  waiver  of  in- 
demnity as  a  bar  to  an  international  claim. 

In  the  Orinoco  Steamship  Company  case,  in  considering  the  rights  of 
the  British  stockholders,  the  British  government  took  the  view  that  its 
general  international  right  of  diplomatic  interposition  was  not  modified 
by  the  renunciatory  clause  contained  in  the  concession  of  that  company. - 

The  German  government  in  a  case  which  likewise  arose  in  Venezuela 
did  not  consider  itself  bound  by  the  renunciatory  clause,  taking  the 
ground  that  the  German  government  is  not  a  party  to  these  contracts. 
That  government  reserves  the  right  to  intervene  diplomatically  for 
the  protection  of  its  citizens  whenever  it  considers  it  best  to  do  so,  "no 
matter  what  the  terms  of  the  contract,  in  this  particular  respect,  are."  ^ 

1  Supra,  p.  372. 

2  Although,  added  the  English  government,  the  fact  that  the  company  had  con- 
tracted themselves  out  of  every  remedial  recourse  in  case  of  dispute  is  an  element 
to  be  taken  into  consideration  when  they  subsequently  appeal  for  the  intervention 
of  his  Majesty's  Government.    Ralston,  90. 

'  Position  of  the  German  government  as  stated  by  the  German  minister  at  Caracas 
to  Mr.  Loomis,  the  American  minister,  Moore's  Dig.  VI,  300. 


800  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

§  376.  Decisions  of  International  Tribunals  on  Effect  of  Contractual 
Renunciation. 

International  commissions  have  had  frequent  occasion  to  construe 
the  effect  on  the  right  of  the  claimant  to  ask  the  intervention  of  his 
government  and  of  the  government  to  intervene  in  a  case  where  there 
has  been  an  express  renunciation  of  the  right.  In  the  case  of  Jarr 
and  Hurst/  Palacio,  the  Mexican  commissioner,  speaking  for  the 
commission,  held  that  the  release  of  claimants  from  imprisonment 
on  the  understanding  that  no  claim  should  be  brought  for  the  im- 
prisonment, to  which  arrangement  the  American  minister  consented, 
operated  as  a  bar  to  the  claim. 

For  the  most  part,  however,  the  occasions  on  which  international 
commissions  have  had  to  construe  the  effect  of  a  contractual  renuncia- 
tion of  protection  have  involved  the  question  of  the  validity  of  the 
Calvo  clause,  which,  in  contracts,  generally  reads: 

"The  doubts  and  controversies  that  may  arise  on  account  of  this  con- 
tract shall  be  decided  by  the  competent  tribunals  of  the  Republic,  in 
conformity  with  the  laws,  and  shall  not  give  rise  to  any  international 
reclamation." 

The  clause  is  worded  differently  from  time  to  time,  sometimes  stop- 
ping with  the  mere  statement  that  the  doubts  shall  be  submitted 
to  the  local  courts,  with  no  further  stipulation  as  to  the  renunciation 
of  diplomatic  protection.  Sometimes  such  renunciation  is  added  to 
the  stipulation  for  exclusive  jurisdiction  of  the  local  courts,  with  the 
proviso  that  cases  of  denial  of  justice  are  excepted.  For  the  present 
purposes,  all  forms  of  the  clause  may  be  considered  together,  for  in 
the  cases  that  have  arisen  where  the  stipulation  involved  nothing 
further  than  exclusive  submission  to  the  local  courts,  the  local  remedies 
had  not  been  exhausted. 

Nor  are  the  principles  laid  down  seriously  modified  by  the  fact 
t  hat  the  clause  has  not  always  been  framed  in  identical  language. 

The  decisions  of  various  international  commissions  are  by  no  means 
uniform.  In  the  nineteen  cases  reported  by  Moore  and  Ralston,  eight 
have  upheld  the  clause  as  barring  the  right  of  the  claimant  to  appear 
before  an  international  commission  without  having  fulfilled  his  obliga- 

» Jarr  and  Hur8t  (U.  S.)  v.  Me\.,  July  4,  1868,  Moore's  Arb.  2713. 


THE    VALIDITY    OF   CALVO    CLAUSE    UPHELD  801 

tion  under  the  stipulation,  and  eleven  have  denied  the  validity  of  the 
clause  as  barring  the  right  of  the  claimant,  or  of  his  government,  to 
bring  the  claim  before  an  international  commission,  in  spite  of  the 
fact  that  the  obligation  of  the  stipulation  had  not  been  fulfilled.  One 
tendency  is  noticeable  throughout.  The  commissions  generally  have 
sought  to  find  a  ground  on  which  they  could  relieve  the  claimant  from 
the  binding  character  of  the  obligation  contained  in  the  clause. 

§  376.  The  Validity  of  Calvo  Clause  Upheld. 

Two  of  the  earliest  cases  in  which  the  clause  was  construed  came 
before  the  United  States- Venezuelan  commission  of  1885.  The  con- 
tract in  the  case  of  Day  and  Garrison  ^  provided  for  private  arbitra- 
tion of  disputes  under  it  and  precluded  by  renunciation  any  interna- 
tional claim.  The  contracts  were  held  invahd,  but  Findla}^  the  Ameri- 
can commissioner,  upheld  the  renunciatory  clause  on  the  ground  that  the 
provision  for  settlement  by  arbitration  was  "inconsistent  with  any  at- 
tempt to  make  [disputes]  cause  for  an  international  claim  on  any  pretext 
whatever" — this  in  spite  of  the  fact  that  the  contracts  had  been  an- 
nulled by  a  decree  of  Venezuela,  which  Commissioner  Little,  in  a 
dissenting  opinion,  held  to  have  closed  the  door  to  arbitration  and 
therefore  to  bar  the  defendant  from  setting  up  the  renunciation  of 
national  protection. 

In  the  Flannagan  case  before  the  same  commission,^  Commissioner 
Findlay,  for  the  commission,  held  the  claimant  bound  by  the  stipula- 
tion for  exclusive  local  jurisdiction,  but  expressed  serious  doubt  as 
to  whether  the  decisions  of  the  local  courts  would  stand  free  from 
international  claim  in  case  of  a  denial  of  justice.  The  dissenting 
opinion  of  Commissioner  Little  in  that  case  ^  has  since  become  the 
starting  point  for  the  decisions  of  subsequent  commissions  denying 
the  binding  character  of  the  clause  in  case  of  a  subsequent  agreement 

'  Day  and  Garrison  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  .3548,  3.56.3-(>4 
('liclum  only).  The  umpire  of  the  1866  commission  had  held  that  the  decree  annulling 
the  provision  as  to  arbitration,  revived  claimant's  right  to  make  the  contract  the 
subject  of  an  international  claim,  in  spite  of  the  stipulation.    Moore's  Arb.  3563. 

2  Flannagan,  Bradley,  Clark  &  Co.  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's 
Arb.  3564,  3565. 

'  Moore's  Arb.  3566;  Report  of  the  Commission,  Washington,  1890,  p.  451,  Ralston, 
International  arbitral  law  and  procedure,  Boston,  1910,  p.  36. 


802  THE    DIPLOMATIC    FROTECTION    OF    CITIZENS    ABKOAD 

by  the  two  nations  to  submit  the  question  to  arbitration.  A  portion 
of  his  opinion  on  this  point  may  be  quoted : 

"An  agreement  in  my  judgment  between  the  United  States  and 
Venezuela  to  submit  its  claims  to  a  Mixed  Commission  for  decision  ac- 
cording to  justice,  superseded  and  took  the  place  of  any  previous  under- 
standing between  the  latter  and  the  claimants,  if  any  binding  one  ex- 
isted, to  submit  them  to  any  other  tribunal  for  determination.  .  .  . 
A  contract  between  a  sovereign  and  a  citizen  of  a  foreign  country  not 
to  make  matters  of  difference  or  dispute  .  .  .  the  subject  of  an  inter- 
national claim  .  .  .  would  involve  'pro  tanto  a  modification  or  suspen- 
sion of  the  public  law.  ..." 

which  he  considered  beyond  the  competence  of  any  individual.  His 
government's 

"rights  and  obligations  in  the  premises  cannot  be  affected  by  any  pre- 
cedent agreement  to  Avhich  it  is  not  a  party.  Its  obligation  to  protect 
its  OAvn  citizen  is  inalienable." 

Ill  1900  Secretary  of  State  Hay  declined  to  present  the  claim  again 
to  the  government  of  Venezuela  "until  there  has  been  a  compliance 
with  the  aforesaid  stipulation,  resulting  in  a  denial  of  justice."  ^  The 
claim  was,  however,  brought  before  the  Venezuelan  commission  of 
1903  in  the  Woodruff  case.^ 

This  was  the  first  of  four  decisions  in  which  the  umpire,  Dr.  Barge 
of  Holland,  had  an  opportunity  to  construe  the  effect  and  validity 
of  the  renunciatory  clause  under  protocols  essentially  the  same,  and 
in  which  his  decisions  varied  to  such  an  extent  as  completely  to  ob- 
scure the  law.  In  this  Woodruff  case,  Bainbridge,  the  American  com- 
missioner, approved  the  opinion  of  Mr.  Little,  quoted  above  in  the 
Flannagan  case.  The  Venezuelan  commissioner,  Paul,  considered, 
as  Commissioner  Findlay  had  done  in  the  1885  commission,  that  the 
Calvo  clause  withdrew  the  claim  from  the  jurisdiction  of  the  commission. 
The  umpire.  Dr.  Barge,  held  that  the  failure  to  comply  with  the  stipula- 
tion conferring  exclusive  jurisdiction  on  the  local  courts  barred  the 
right  of  the  claimant  to  appear  before  the  commission,  although,  he 
added,  the  citizen  could  not  impede  the  right  of  his  government  to 
bring  an  international  claim,  in  case  of  denial  or  undue  delay,  of  justice. 

»  Mr.  Hay,  Sec'y  of  State,  to  Mr.  Woodruff,  Nov.  28,  1900,  Moore's  Dig.  VI,  301. 
2  WoodruPf  (U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  151,  160. 


THE  VALIDITY  OF  CALVO  CLAUSE  UPHELD  803 

In  the  Rudloff  case,^  which  was  then  pending  before  the  local  courts 
but  had  not  yet  been  decided,  Umpire  Barge  held  that  the  stipulation 
for  exclusive  jurisdiction  in  the  local  courts  did  not  prevent  the  com- 
mission from  exercising  jurisdiction,  on  the  ground  that  the  "absolute 
equity"  clause^  gave  the  commission  the  right  to  determine  whether 
such  stipulation  operated  inequitably.  He  considered  that  it  did 
so  operate  and  entertained  jurisdiction,  after  doing  which,  he  said, 
he  could  decide  whether  the  failure  to  submit  the  case  to  the  local 
courts  affected  the  claim  with  a  vitium  proprium. 

In  the  Orinoco  Steamship  case,^  Barge  again  held,  after  finding  that 
the  particular  question  under  discussion  was  a  "dispute"  and  that 
the  rule  of  absolute  equity  could  not  permit  the  same  contract  being 
made  "a  chain  for  one  party  and  a  screw  press  for  the  other,"  that  the 
parties  having  selected  their  own  judges  and  renounced  international 
reclamation,  "absolute  equity"  did  not  allow  the  commission  to  rec- 
ognize the  claim. 

In  the  Turnbull  case,^  Umpire  Barge  made  the  most  sweeping  deci- 
sion of  all.  He  held  that  where  the  parties  had  "deliberately  con- 
tracted themselves  out  of  any  interpretation  of  the  contract"  except 
by  certain  designated  judges,  and  no  such  submission  to  or  decision 
of  these  judges  awarding  damages  had  taken  place,  an  international 
commission  is  precluded  from  taking  jurisdiction  of  the  claim.  Mr. 
Moore  pertinently  remarks: 

"  It  may  be  superfluous  to  remark  that,  according  to  this  view,  there 
can  be  no  room  whatever  for  international  action,  in  diplomatic,  arbitral, 
or  other  form,  where  the  renunciatory  clause  exists,  unless  indeed  to 
secure  the  execution  of  the  judgment  of  a  local  court  favorable  to  the 
claimant;  for,  if  the  parties  have  'no  right  to  claim'  damages  which  the 
local  courts  have  not  found  to  be  due,  it  is  obvious  that  international 
action  of  any  kind  would  be  as  inadmissible  where  there  had  been  an 
adverse  judgment,  no  matter  how  unjust  it  might  be,  as  where  there 
had  been  no  judgment  whatever."^ 

1  Rudloff  (U.  S.)  «'.  Venezuela,  Feb.  17,  1903,  Ralston,  182,  193. 

•This  clause  reads:  "The  commissioners,  or  in  case  of  their  disagreement,  the 
umpire,  shall  decide  all  claims  upon  a  basis  of  absolute  equity,  without  regard  to 
objections  of  a  technical  nature,  or  of  the  provisions  of  local  legislation." 

»  Orinoco  Steamship  Co.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  72,  91-92. 

*■  Turnbull  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  200,  245. 

*  Moore's  Dig.  VI,  307.    A  good  summary  of  the  fluctuating  position  taken  by 


804  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

The  binding  character  of  the  clause  was  upheld  by  the  Anglo-Chilean 
commission  of  1893  in  the  case  of  the  Nitrate  Railway  Company,^ 
in  which  it  was  held  that  the  claimant  had  voluntarily  accepted  the 
concession  and  could  agree  to  such  stipulations  as  he  desired;  that 
the  granting  government  in  giving  concessions,  had  the  right  to  place 
foreigners  on  the  same  basis  as  its  nationals;  and  that  there  is  no 
principle  of  international  law  which  forbids  citizens  to  agree  personally 
to  contracts  renouncing  diplomatic  action,  although  the  stipulation, 
they  added,  does  not  "obligate  foreign  governments."  That  is,  while 
his  government  may  not  be  bound  by  the  renunciatory  clause,  the 
citizen  is,  and  the  claim  was  dismissed.^ 

Plumley,  umpire  of  the  French-Venezuelan  commission  of  1902,' 
stated  that  "he  could  not  entirely  ignore  the  restrictive  features  of 
the  contract."  He  gave  it  partial  effect,  although  evidently  consciously 
restricting  it  to  its  narrowest  limits,  by  stating  that  the  question  of 
damages  under  the  operation  of  the  contract  is  ulterior  to  the  contract 
itself,  and  the  renunciatory  clause  is  inapplicable,  covering,  as  it  does, 
only  the  question  of  rescission.  Paul,  the  Venezuelan  commissioner 
in  the  Kunhardt  case,^  upheld  the  validity  of  the  clause  although 
his  conclusion  to  this  effect  was  not  involved  in  the  final  judgment. 

Commissioner  Wadsworth,  speaking  for  the  commission  in  the 
Tehuantepec  ship  canal  case  ^  held  that  a  stipulation  to  refer  questions 
arising  under  the  contract  to  private  arbitration  must  be  complied 
with  in  order  to  give  an  international  commission  jurisdiction  over 
the  case. 

Umpire  Barge  in  the  interpretation  of  the  renunciatory  clause  is  given  in  Senate 
Document  413,  60th  Cong.,  1st  sess.  (1908),  Correspondence  relating  to  wrongs 
done  to  American  citizens  by  the  government  of  Venezuela,  pp.  79-84. 

'  Nitrate  Railway  Company,  Lim.  (U.  S.),  v.  Chile,  Reclamaciones  presentados  al 
'I'ribunal  Anglo-Chileno,  Santiago,  1894-96,  II,  320  el  seq.,  cited  in  Ralston's  Inter- 
national arbitral  law,  41. 

2  This  is  somewhat  analogous  to  Umpire  Barge's  conclusions  in  the  Woodruff  case, 
Ralston,  160. 

'  Plumley,  Umpire  in  the  French- Venezuelan  Mixed  Claims  Commission  of  1902, 
Senate  Document,  533,  59th  Cong.,  1st  sess.  (1906),  367,  at  p.  445. 

«  Kunhardt  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  63,  70  {dictum). 

» Tehuantepec  Ship  Canal  Co.  (U.  S.)  v.  Mex.,  July  4,  1868,  Moore's  Arb.  3132- 
31.33. 


TUK    VALIDITY    OF   CALVO   CLAUSE    DENIED  805 

§  377.  The  Validity  of  Calvo  Clause  Denied. 

In  the  several  international  claims  cases  in  which  the  binding  char- 
acter of  the  renunciatory  clause  has  been  denied  and  the  claimant 
relieved  from  its  inhibitions,  there  is  evident  an  attempt  to  limit  its 
application  and  to  find  grounds  for  denying  its  validity  as  a  bar  to 
an  international  claim.  The  grounds  taken  by  international  commis- 
sions to  uphold  the  claimant's  right  to  appeal  to  the  international 
forum  in  spite  of  the  renunciatory  clause  have  been  three:  first,  that 
it  is  beyond  the  competence  of  an  individual  to  contract  away  the 
superior  right  of  his  government  to  protect  him,  as  in  the  RudlofT 
and  Martini  cases  before  the  Venezuelan  Commissions  of  1903;  sec- 
ondly, in  cases  where  the  government  had  annulled  the  contract  with- 
out first  appealing  to  the  local  courts,  that  such  action  relieves  the 
claimant  from  the  stipulation  not  to  make  the  contract  a  subject  of 
international  claim,  as  in  the  Milligan  case  against  Peru  and  the  North 
and  South  American  Construction  Co.  case  against  Chile;  thirdly, 
wherever  possible,  the  courts  try  to  find  that  the  claim  arises  not  out 
of  the  contract  itself,  but  out  of  some  violation  of  property  rights, 
thus  basing  the  claim  on  tort,  as  in  the  Selwyn  and  the  Rudloff  cases. 

It  may  be  profitable  to  examine  the  cases  somewhat  more  closely. 
The  principle  laid  down  in  the  Martini  case  and  the  learned  opinion 
of  Umpire  Ralston  is  considered  good  law.^ 

"The  right  of  a  sovereign  power  to  enter  into  an  agreement  of  this 
kind"  (to  submit  to  a  mixed  commission  the  claims  of  its  citizens  against 
another  government)  "is  entirely  superior  to  that  of  the  subject  to  con- 
tract it  away.  It  was,  in  the  judgment  of  the  umpire,  entirely  beyond 
the  power  of  an  Italian  subject  to  extinguish  the  superior  right  of  his 
nation,  and  it  is  not  to  be  presumed  that  Venezuela  understood  that  he 
had  done  so." 

So  in  the  Rudloff  ^  case,  Bainbridge,  the  American  commissioner, 
said : 

'  Martini  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  819-841.  The  opinion 
on  this  point  seems  to  be  dictum,  inasmuch  as  the  umpire  decided  that  damages, 
were  due  because  of  the  closing  of  a  port  in  violation  of  the  contract  and  that  the 
dispute  was  not  within  the  terms  "doubts  and  controversies  which  maj'  arise  in  the 
interpretation  or  execution  of  the  contract." 

*  Rudloff  (U.  S.)  f^.  Venezuela,  Feb.  17,  1903,  Ralston,  183,  187.  The  opinion 
by  Bainbridge  on  the  question  of  jurisdiction  ia  not  the  opinion  of  the  commission. 


806  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

"It  is  not  within  the  power  of  a  citizen  to  make  a  contract  limiting 
in  any  manner  the  exercise  by  his  own  government  of  its  rights  or  the 
performance  of  its  duties"  (the  right  and  duty  of  protecting  its  citizens 
abroad).  "The  individual  citizen  is  not  competent  by  any  agreement 
he  may  make  to  bind  the  state  to  overlook  any  injury  to  itself  arising 
through  him,  nor  can  he  by  his  own  act  alienate  the  obligation  of  the 
state  toward  himself,  except  by  a  transfer  of  his  allegiance." 

In  the  Selwyn  case  ^  the  question  under  dispute  was  still  pending 
in  the  local  courts.    Plumley,  Umpire,  stated  that 

"within  the  limits  prescribed  by  the  convention  constituting  it  the  parties 
have  created  a  tribunal  superior  to  the  local  courts," 

and  it  is  not  affected  jurisdictionally  by  the  fact  that  the  question 
submitted  for  its  decision  is  pending  in  the  courts  of  one  of  the  nations.^ 
The  second  class  of  cases  embraces  those  in  which  the  government 
has  annulled  the  contract  or  some  important  term  of  it  and  then  sought 
to  estop  the  claimant  by  alleging  the  binding  character  of  the  renuncia- 
tory clause  as  a  bar  to  the  international  claim.  In  such  cases  inter- 
national courts  have  been  apparently  very  willing  to  construe  the 
breach  by  the  government  as  relieving  the  claimant  from  his  stipula- 
tion to  be  bound  by  the  decision  of  the  local  courts  and  not  to  make 
the  contract  the  subject  of  an  international  claim.  They  begin  with 
the  premise  that  the  obligations  of  the  clause  bear  equally  and  recip- 
rocally upon  both  parties  to  the  contract — the  government  and  the 
claimant — and  that  when  the  government,  without  resort  to  the  local 
tribunals,  declares  the  contract  null,  the  claimant  is  absolved  from  all 
obligations  limiting  his  remedial  rights.^  The  basis  for  this  decision, 
which  finds  ample  support,  bears  an  analogy  to  the  rule  of  the  Depart- 

which  was  rendered  by  the  umpire,  Barge.  Bainbridge'e  opinion,  however,  appears 
not  to  have  been  contradicted  by  the  umpire. 

1  Sehvyn  (Gt.  Brit.)  v.  Venezuehx,  Feb.  13,  1903,  Ralston,  322,  323. 

-  Barge,  Ihupire  in  the  Rudloff  case,  in  which  a  suit  was  likewise  pending  before 
the  local  courts  also  considered  that  the  commission  had  jurisdiction,  notwith- 
standing the  pendency  of  the  case  in  the  local  courts. 

3  Rudloff  (U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  182,  183.  See  also  opinion 
ot  Commissioner  Little  in  the  case  of  Day  and  Garrison  v.  Venezuela,  Dec.  5,  1885, 
Moore's  Dig.  VI,  .301-2.  Commissioner  Findlay,  however,  de(;lincd  to  give  the  annul- 
ment by  the  Government  this  cfTect  in  the  Flannagan  case  before  the  1885  Commis- 
sion. Barg(!  likewise  refused  to  give  it  such  effect  in  several  cases  before  the  1903 
U.  S.-V(;nezuelan  commission. 


THE    VALIDITY   OF    CALVO   CLAUSE   DENIED  807 

ment  of  State  and  international  tribunals,  to  relieve  the  claimant, 
where  there  has  been  a  confiscatory  breach  of  contract,  from  the  usual 
practice  of  a  denial  of  interposition  or  jurisdiction  in  contract  claims. 
Mr.  Blaine,  Secretary  of  State,  in  the  case  of  McMurdo  ^  stated  that 
it  is 

''not  within  the  power  of  one  of  the  parties  to  an  agreement  first  to 
annul  it,  and  then  to  hold  the  other  party  to  the  obsei-yance  of  the  con- 
ditions as  if  it  were  a  subsisting  agreement." 

The  same  rule  was  applied  by  the  international  commission  which  sub- 
sequently passed  upon  the  claim. 

In  the  North  and  South  American  Construction  Co.  case  against 
Chile,^  the  fact  that  the  government  had  failed  to  comply  with  the 
stipulation  referring  the  claim  to  private  arbitrators  was  held  to  relieve 
the  claimant  from  his  obligation  not  to  invoke  the  protection  of  his 
own  government  in  the  enforcement  of  his  rights.  The  American 
Commissioner,  Vidal,  in  the  Milligan  case  against  Peru,  likewise  stated 
that  through  the  annulment  of  the  contract  by  the  government  of 
Peru,  the  claimant  recovered  the  right  which  he  had  renounced  to 
invoke  the  protection  of  his  government.^  While  Pino,  the  Peruvian 
commissioner,  did  not  support  Vidal  in  this  decision,  but  considered 
the  clause  as  a  complete  bar  to  the  claim,  Vidal's  opinion  seems  to 
have  prevailed,  inasmuch  as  by  subsequent  agreement  between  the 
commissioners  an  award  was  made  in  favor  of  the  claimant. 

In  the  third  class  of  cases,  the  international  tribunal  circumvented 

»  McMurdo  (U.  S.)  p.  Portugal,  June  13,  1891,  Moore's  Arb.  1865  et  seq.;  Mr. 
Blaine,  Sec'y  of  State,  to  Mr.  Loring,  Minister  to  Portugal,  Nov.  30,  1889,  Moore's 
Dig.  VI,  397,  Moore's  Arb.  1870. 

-  North  and  South  American  Construction  Co.  (U.  S.)  i'.  Chile,  Aug.  7,  1892, 
Moore's  Arb.  2318-2322. 

3  Milligan  (U.  S.)  v.  Peru,  Dec.  4,  1868,  Moore's  Arb.  1643.  In  the  case  of  La 
Guaira  Electric  Light  and  Power  Co.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston, 
178-182,  Mr.  Ralston,  in  his  work  on  International  arbitral  law  makes  the  statement 
that  Commissioner  Bainbridge,  speaking  for  the  commission,  said  that  as  to  a  part 
of  the  claim,  it  was  not  one  "in  which  the  government  itself  had  violated  a  contract 
to  which  it  was  a  party.  In  such  a  case,  the  jurisdiction  of  the  commission  under 
the  terms  of  the  protocol  is  beyond  question."  In  the  La  Guaira  Electric  case,  how- 
ever, the  contract  was  not  with  the  government  at  all,  but  with  a  municipality, 
for  which  reason  the  claim  was  dismissed.  Moreover,  there  is  no  evidence  from  the 
case,  as  reported,  that  the  coatract  contained  the  renunciatory  clause. 


808  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

the  inhibitory  effect  of  the  renunciatory  clause  by  holding  that  the 

subject  of  the  claim  arose  not  out  of  a  "doubt  or  controversy"  under 

the  contract,  but  out  of  a  deprivation  of  property  rights  or  breach 

of  contract  or  some  other  element  which  relieved  the  commission 

from  directly  construing  the  effect  of  the  renunciatory  clause. 

So  in  the  Selwyn  case,  Umpire  Plumley  based  his  decision  upon  the 

ground  that 

"the  claim  before  him  has  in  no  particular  to  deal  with  any  doubts  and 
controversies  .  .  .  regarding  the  spirit  or  execution  of  the  contract 
in  which  such  terms  appear.  The  fundamental  ground  of  this  claim  as 
presented  is  that  the  claimant  was  deprived  of  valuable  rights,  of  moneys, 
properties  .  .  .  and  rights  of  property,  by  an  act  of  the  Government 
which  he  was  powerless  to  prevent  and  for  which  he  claims  reimburse- 
ment .  .  .  The  fundamental  feature  of  this  claim  ...  is  not  a  matter  of 
contract."  ^ 

A  somewhat  similar  conclusion  was  reached  in  the  Rudloff,  the  Martini, 
and  other  cases  before  the  Venezuelan  mixed  commissions  sitting  at 
Caracas  in  1903.^ 

§  378.  Conclusions. 

What  conclusion  may  be  drawn  as  to  the  effect  of  the  renunciatory 

1  Selwyn  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  May  7,  1903,  Ralston,  322. 

^  Rudloff  (U.  S.)  P.  Venezuela,  Feb.  17,  1903,  Ralston,  188.  Umpire  Ralston  in 
the  Martini  case  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  843  held  that  the 
closing  of  a  certain  port  was  a  violation  of  the  contract  and  not  a  doubt  and  con- 
troversy as  to  its  interpretation  and  execution. 

A  similar  conclusion  was  reached  by  Paul,  Venezuelan  commissioner  in  the  case 
of  Del  Genovese  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  174-178,  in  which  the 
breach  of  the  contract  was  apparently  not  held  to  be  a  "dispute  and  controversy." 

So  in  the  case  of  the  American  Electric  and  Manufacturing  Co.  (U.  S.)  v.  Vene- 
zuela, Feb.  17,  1903,  Ralston,  246-250,  Barge,  umpire,  held  that  the  breach  of  a 
collateral  promise  (to  annul  a  previous  concession  granted  to  another)  was  not  a 
''doubt  and  controversy"  under  the  contract  on  which  claim  was  brought.  He 
then  held,  however,  that  as  the  promise  to  annul  a  previous  concession,  which  also 
contained  the  Calvo  clause,  was  in  itself  a  promise  to  do  an  illegal  act,  the  broach 
of  such  promise  could  not  be  made  the  basis  of  a  claim.  No  two  of  Umpire  Barge's 
decisions  construing  the  renunciatory  clause  seem  to  be  consistent  with  each  other. 

See  also  the  cases  of  the  Antofagasta  and  Bolivia  Railway  Co.  (Gt.  Brit.)  v.  Chile, 
Sept.  26,  1893,  Reclamacionos  presentados  al  Tribunal  Anglo-Chileno,  III,  p.  699  at 
p.  788  et  seq.;  and  Robert  Stirling  (Gt.  Brit.)  v.  Chile,  ihid.  I,  p.  128  at  p.  152  et  seq, 
cited  by  Ralston  in  his  International  artibral  law,  42-43.  See  also  Cora  and  La 
Vela  Ry.  &  Impr.  Co.  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Morris'  Rep.  69,  70. 


CONCLUSIONS  809 

clause?  Great  Britain,  Germany,  and  the  United  States  appear  to 
have  considered  themselves  not  bound  by  its  terms.  Mr.  Bayard 
expressly  stated: 

"The  United  States  has  uniformly  refused  to  regard  such  provisions 
as  annulling  the  relations  existing  between  itself  and  its  citizen  or  as 
extinguishing  its  obligations  to  exert  its  good  offices  in  their  behalf  in 
the  event  of  the  invasion  of  their  rights."  ' 

Furthermore,  said  Mr.  Bayard  in  another  connection: 

"No  agreement  by  a  citizen  to  surrender  the  right  to  call  on  his  gov- 
ernment for  protection  is  valid  either  in  international  or  municipal 
law."  2 

A  close  analogy  is  found  in  the  settled  principle  of  municipal  law 
by  which  stipulations  in  private  contracts  agreeing  to  resort  to  arbi- 
tration and  renouncing  judicial  remedies  are  held  invalid,  on  the  ground 
that  it  is  against  public  polic}^  "to  sanction  contracts  by  which  the 
protection  which  the  law  affords  the  individual  citizen  is  renounced."  ' 

The  weight  of  authority  supports  the  view  that  the  mere  stipula- 
tion to  submit  disputes  to  local  courts  is  confirmatory  of  the  general 
rule  of  international  law  and  will  be  so  construed  by  the  national 
government  of  concessionaries.  If,  however,  the  renunciation  goes 
so  far  as  to  preclude  recourse  to  diplomatic  protection,  even  in  cases 
of  denial  of  justice,  the  renunciation  of  protection  ^\ill  not  be  considered 
as  binding  upon  the  claimant's  government;  for,  as  in  municipal  law 
the  private  agreement  cannot  oust  the  jurisdiction  of  municipal  courts, 
so  in  international  law  the  private  agreement  cannot  oust  the  inter- 
position of  international  remedies.  Again,  if  there  has  been  a  confis- 
catory breach  of  the  contract  by  the  government,  the  claimant  will 

1  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Hall,  Minister  to  Central  America,  Mar.  22, 
1888,  For.  Rel.,  1888,  I,  134,  137,  with  respect  to  the  claim  of  the  Champerico  and 
Northern  Transportation  Co.  v.  Guatemala,  growing  out  of  an  alleged  violation 
by  that  government  of  its  contract  with  the  company.  Moore's  Dig.  VI,  295.  See 
also  Mr.  Wilson,  Act'g  Sec'y  of  State,  to  Mr.  Hibben,  Charge,  May  19,  1909,  For. 
Rel.,  1909,  p.  222. 

^  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Hill,  Feb.  16,  1887,  For.  Rel.,  1887,  p.  100. 

'  Delaware  &  Hudson  Canal  Co.  v.  Pa.  Coal  Co.,  50  N.  Y.  250,  258;  National 
Contracting  Co.  v.  Hudson  River  Water  Power  Co.,  170  N.  Y.  439,  442;  Hamilton  v. 
Liverpool,  L.  &  G.  Ins.  Co.,  136  U.  S.,  242,  254  (dictum).  See  R.  Floyd  Clarke  in 
1  A.  J.  I.  L.  (1907),  378  et  seq.,  and  L.  von  Bar  in  his  opinion  in  the  case  of  Salvador 
Commercial  Co.  t;.  Salvador,  45  Jhering's  Jahrbiicher,  193. 


biO  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

be  relieved  from  the  stipulation  barring  his  right  to  make  the  contract 
the  subject  of  an  international  claim.  While  some  arbitrators,  notably 
Umpire  Barge,  have  evolved  the  rule  that  the  clause  is  binding  upon 
the  claimant,  but  not  on  his  government,  it  is  difficult  to  see  how  such 
an  inconsistent  rule  can  be  applied,^  and  in  fact  these  arbitrators  have 
taken  jurisdiction  of  claims  in  such  circumstances  and  made  awards. 
Finally,  the  right  of  the  government  to  submit  the  claims  of  its  citizens 
to  an  international  tribunal,  is,  it  may  be  concluded,  superior  to  the 
light  or  competency  of  the  individual  to  contract  it  away,  for  whatever 
the  individual's  power  to  renounce  a  personal  right  or  privilege,  he 
does  not  represent  the  government  and  is,  therefore,  incompetent 
to  renounce  a  right,  duty,  or  privilege  of  the  government.  In  sum 
total,  therefore,  the  better  opinion  seems  to  be  that  the  renunciatory 
clause  is  without  any  effect  so  far  as  any  changes  or  modifications 
in  the  ordinary  rules  of  international  law  are  concerned. 

IMPLIED   RENUNCIATION    OF   PROTECTION 

§  379.  Various  Acts  from  which  Renunciation  is  Implied. 

It  will  have  been  observed  in  the  discussion  of  expatriation,  express 
and  implied,^  and  of  censurable  conduct  as  a  method  of  forfeiting 
protection, 2  that  there  are  numerous  ways  in  which  protection  may 
be  renounced  by  implication.  During  the  latter  half  of  the  nineteenth 
century,  the  long-continued  residence  of  native  citizens  abroad  was 
regarded  as  a  voluntary  renunciation  of  protection.'*  Even  when  it 
was  admitted  that  such  foreign  residence  did  not  effect  expatriation,  the 
Department  of  State  was  guided  largely  by  Secretary  Fish's  theory,  that 

"citizenship  involv^es  duties  and  obligations,  as  well  as  rights.  The 
correlative  right  of  protection  by  the  Government  may  be  waived  or 
lost  by  long-continued  avoidance  and  silent  withdrawal  from  the  per- 
formance of  the  duties  of  citizenship,  as  well  as  by  open  renunciation."  '' 

Since   the   improvement   in   the   facilities   for   communication   and 

'  Mr.  Bayard  correctly  stated  that  "to  deny  to  a  foreigner  recourse  to  his  Govern- 
ment by  necessary  implication  questions  and  denies  the  right  of  that  Government 
to  intervene."    Mr.  Bayard  to  Mr.  Hall,  Nov.  29,  1886,  For.  Rel.,  1887,  p.  80. 

2  Supra,  §§  319,  325  el  seq. 

»  Supra,  §§  337  el  seq. 

*  Moore's  Dig.  Ill,  §  474. 

5  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Niles,  Oct.  30,  1871,  Moore's  Dig.  Ill,  762. 


IMPLIED   RENUNCIATION    OF    PROTECTION  811 

transportation  and  the  increase  of  international  intercourse,  it  has 
been  admitted  that  foreign  domicil  no  longer  has  the  same  significance 
as  in  former  years.  With  a  view  to  establishing  on  a  more  just  basis 
the  right  of  a  citizen  domiciled  abroad  to  the  protection  of  this  govern- 
ment, the  Department  of  State  in  a  circular  of  July  2G,  1910,  entitled 
"Protection  of  native  citizens  abroad,"  fixed  upon  certain  tests  and 
presumptions,  which,  upon  application  to  particular  cases,  are  intended 
to  establish  whether  the  citizen  has  definitely  identified  himself  with 
a  foreign  country  and  impliedly  renounced  his  right  to  American  pro- 
tection.^ One  of  the  most  important  factors  in  determining  that  the 
citizen  abroad  has  impliedly  renounced  his  right  to  protection  is  his 
failure  to  register  in  an  American  consulate.^ 

In  the  case  of  naturalized  citizens,  protracted  residence  abroad 
frequently  resulted  in  a  presumption  of  abandonment  of  their  ac- 
quired American  citizenship  and  protection.  In  the  absence  of  statu- 
tory rules,  prior  to  1907,  each  case  had  to  be  determined  upon  its 
own  merits  in  the  exercise  of  departmental  discretion.  The  intent 
to  abandon  American  citizenship  was  in  each  case  sought  to  be  es- 
tablished, and  numerous  tests  and  criteria  were  applied  in  the  deter- 
mination of  this  intent.  Departure  from  the  United  States  soon  after 
naturalization  and  a  return  to  the  native  country  for  apparently  per- 
manent residence  usually  resulted  in  a  presumption  of  renunciation 
of  naturalization,^  although  evidence  was  permitted  by  which  the 
presumption  might  be  overcome.  When  it  was  apparent  that  the 
naturalization  was  obtained  not  with  any  real  design  of  establishing 
a  permanent  residence  in  the  United  States,  but  for  the  purpose  of 
going  abroad  and  using  the  advantages  of  American  citizenship,  while 
evading  its  duties  and  responsibilities,  a  presumption  of  fraud  was 
created.'*  While  it  is  not  always  clear  that  expatriation  was  deemed 
to  follow  residence  abroad — there  being  indeed  much  doubt  whether 
the  executive  was  empowered  to  denationalize  a  citizen — protection 
was  uniformly  withdrawn.     The  Act  of  March  2,  1907  has  greatly 

1  Supra,  §  328. 

2  Supra,  pp.  689,  723. 

»  Supra,  §  330,  Moore's  Dig.  Ill,  §§  470,  475. 
* -Supra,  pp.  663,  720,  732. 


812  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

simplified  the  extension  of  diplomatic  protection  to  naturalized  citizens 
by  providing  that  two  years'  residence  in  the  native  country  or  five 
years'  residence  in  a  third  country  shall  establish  a  presumption  of 
expatriation,  and  the  circular  of  April  19,  1907  sets  forth  the  various 
ways  in  which  this  presumption  may  be  overcome.^  Almost  all  the 
naturalization  treaties  of  the  United  States  provide  that  a  two  years' 
residence  in  the  native  country  shall  create  a  presumption  of  intent 
to  renounce  American  citizenship.^ 

Reference  has  been  made  on  several  occasions  ^  to  the  Anglo-American 
doctrine  of  belligerent  domicil,  according  to  which  the  enemy  or  neutral 
character  of  property  at  sea  is  judged  by  the  so-called  commercial 
domicil  of  its  owner,  rather  than  by  his  political  allegiance.  His  per- 
sonal disposition  toward  the  belligerents  is  immaterial.^  Moreover, 
property  engaged  in  the  commerce  of  the  hostile  power  is  legitimate 
prize,  without  regard  to  the  domicil  of  the  owner.^  Again,  the  prop- 
erty on  land  of  a  person  domiciled  in  belligerent  territory,  and  property 
there  situated  regardless  of  the  owner's  domicil,  is  subject  to  the  risks 
of  war.®  A  person  domiciled  in  enemy  territory  may  properly  be 
regarded  as  an  enemy .^  The  failure  of  a  neutral  to  take  early  steps 
to  remove  from  belligerent  territory  has  been  held  to  constitute  an 
abandonment  of  the  right  to  claim  the  protection  of  the  government 
to  which  his  original  and  permanent  allegiance  is  due.^  A  similar 
result  naturally  follows  the  entrance  of  a  neutral  into  belligerent  ter- 
ritory after  knowledge  of  the  existence  of  war.^ 

'  Supra,  §  331. 

^  Supra,  §§239,241. 

3  Supra,  pp.  110,  253,  559,  Moore's  Dig.  VIT,  §  1189. 

'  Mrs.  Alexander's  Cotton,  2  Wall.  404,  419;  The  Benito  Estenger,  176  U.  S.  568, 
Moore's  Dig.  VII,  §  1190. 

'  The  Prize  Cases,  2  Black.  635. 

«  Supra,  pp.  114,  225.  Brief  of  W.  E.  Fuller  before  Spanish  Treaty  Claims  Com- 
iii.ssion,  case  of  Ter(!sa  Jeorg  i>.  U.  S.,  Briefs,  II,  125. 

'  Hall,  491;  Davidson  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3738,  Hale's 
Rep.  43.  Frazer's  dissenting  opinion  on  forfeiture  of  protection,  concurred  in  by 
presiding  commissioner. 

«Clow  (U.  S.)  V.  Mexico,  Act  of  March  3,  1849,  Moore's  Arb.  2658;  Cooke,  ibid 
2660;  Haggerty,  ibid.  2663;  Thompson,  ibid.  2667. 

'  Thompson  (U.  S.)  v.  Mexico,  ibid.  2669. 


EFFECT   OF   ACCEPTING    PUBLIC    OFFICE   OR    EMPLOYMENT   ABROAD         813 

In  all  these  cases  of  belligerent  domieil,  there  is  an  implied  renun- 
ciation of  the  protection  of  the  national  government  of  the  person 
or  of  the  owner  of  the  property,  in  so  far  as  the  lawful  exercise  of  bel- 
ligerent rights  against  him  is  concerned.  Good  offices,  however,  are 
frequently  employed  in  an  endeavor  to  secure  a  fair  trial  before  prize 
courts  or  the  proper  exercise  of  belligerent  rights. 

The  engagement  of  an  American  vessel  in  the  coasting  trade  of  a 
foreign  country,  which  reserves  such  trade  to  national  vessels,  or  the 
employment  of  an  American  vessel  in  the  service  of  a  foreign  power 
as  auxiliary  to  military  or  naval  operations  has  been  regarded  as  an 
election  to  relj^  exclusively  upon  the  protection  of  the  foreign  country 
and  to  waive  any  claim  to  the  protection  of  the  United  States.^ 

It  has  already  been  observed  in  previous  sections  ^  that  the  cen- 
surable conduct  of  a  claimant  in  certain  cases  operates  as  a  forfeiture 
of  diplomatic  protection.  The  acts  there  discussed  such  as  the  in- 
equitable conduct  of  the  claimant  generally,  concealment  of  citizen- 
ship, the  presentation  of  a  fraudulent  claim,  the  evasion  of  national 
duties,  and  the  violation  of  municipal  or  international  law  in  its  various 
phases  may  likewise  be  regarded  as  involving  an  implied  renunciation 
of  protection. 

§  380.  Effect  of  Accepting  Public  Office  or  Employment  Abroad. 

Whether  the  acceptance  of  a  public  office  or  employment  from  a 
foreign  government  may  be  construed  as  an  implied  renunciation 
of  American  protection  depends  very  much  upon  the  nature  of  the 
employment,  whether  political  or  not,  and  upon  its  consistency  with 
the  retention  of  American  citizenship.  Thus,  where  an  unqualified 
oath  of  allegiance  is  required,^  or  where  the  employment  is  of  an  es- 
sentially political  character,^  protection  is  considered  to  be  renounced. 

1  Supra,  p.  770,  Moore's  Dig.  II,  §  328,  particularly  Mr.  Fish,  Sec'y  of  State,  to 
Mr.  Bassett,  Sept.  15,  1869,  p.  1073. 

^  Supra,  §  337  el  seq. 

^  Lacayo's  case.  For.  Rel.,  1893,  184-185.  When  the  military  service  actually 
involves  naturalization  abroad  American  protection  is  impliedly  renounced.  Smith's 
case  in  Mexico,  Mr.  Seward  to  Mr.  Foster,  August  13,  1879,  For.  Rel.,  1879,  p.  824. 

*  Corvaia  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  808.  While  this  decision 
is  not,  of  course,  binding  upon  the  United  States,  it  will  be  recalled  that  among  the 
important  tests  for  determining  the  right  to  protection  and  true  allegiance  of  a 


»i4  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

While  the  United  States  does  not  prohibit  its  citizens  from  taking 
miUtary  service  abroad,  nor  withdraw  protection  from  them  if  they 
are  inhumanly  treated,  it  will,  for  their  ordinary  protection  while 
serving  under  a  foreign  flag,  leave  them  to  the  protection  of  the  state 
which  they  serve.  The  United  States  will  take  no  cognizance  of  their 
death  in  battle,  or  the  unusual  inconveniences  they  may  suffer  as  bel- 
ligerents. If,  however,  they  take  an  oath  of  allegiance  to  the  state 
which  they  serve,  they  have  expatriated  themselves  under  the  Act 
of  March  2,  1907.  It  has  already  been  observed  that  the  acceptance 
of  military  service  abroad,  without  the  consent  of  the  national  govern- 
ment has  in  many  European  countries  the  effect  of  expatriation  and 
in  all  them  involves  a  loss  of  national  protection  during  the  continuance 
of  the  service.^  Acting  Secretary  Uhl  even  believed  that  employment 
bj'  a  foreign  government  as  a  detective,  custom-house  oflEicer  or  police 
captain  raised  "serious  doubts  whether  [the  citizen]  can  rightfully 
claim,  as  against  that  country,  the  protection  of  his  original  national- 
ity." ^  Upon  a  claim  for  a  pension  to  which  an  American  citizen  al- 
leged he  had  become  entitled  by  service  to  a  foreign  government, 
the  Department  replied:  "As  a  rule,  the  Department  refrains  from 
pressing  claims  growing  out  of  employments,  voluntarily  accepted 
by  American  citizens  under  foreign  governments."  ^  In  the  Corvaia 
claim  against  Venezuela,  in  which  there  was  an  acceptance  by  an 
Italian  subject  of  a  diplomatic  office  from  Venezuela,  the  Italian  law 
providing  that  Italian  nationality  was  thereby  lost.  Umpire  Ralston 
held  that  both  the  claimant  and  his  government  were  estopped  from 
prosecuting  the  claim  against  Venezuela.^     On  the  other  hand,  the 

native  American,  long  resident  abroad,  is  participation  in  the  politics  of  his  country 
of  residence,  and  acceptance  of  political  office  would  operate  strongly  against  him. 

1  Oppenheim,  II,  §  322;  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Williams,  July  29,  1874, 
For.  Rel.,  1874,  p.  300;  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston, 
438  (the  claim  was  not  connected  with  the  military  service).  See  also  Marcel  Nast 
on  the  French  law  in  62  Rev.  crit.  dc  legislation  (1913),  340-365  and  Von  Bar  in 
Gillespie's  trans.,  2nd  ed.,  §  59. 

^  Mr.  Uhl,  Act'g  Sec'y  of  State,  to  Mr.  Willis,  May  14, 1895,  For.  Rel,  1895,  II,  854. 

'  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Moffit,  June  20,  1890,  Moore's  Dig.  VI,  717. 
H  is  the  Department's  policy  not  to  press  claims  for  military  service  or  pensions, 
nufrra,  p.  301. 

*  Corvaia  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  808  (partly  dictum). 


EFFECT    OF   ACCEPTING    PUBLIC    OFFICE   OR   EMPLOYMENT   ABROAD         815 

appointment  of  an  American  citizen  as  Vice-Consul  of  a  foreign  coun- 
try, which  does  not  require  an  unqualified  oath  of  allegiance,  a  rule 
which  also  prevails  in  the  American  consular  service,  is  not  regarded 
as  a  renunciation  of  American  citizenship  or  protection.^  Various 
treaties  concluded  among  the  Latin-American  states  provide  that 
the  fulfillment  of  public  functions  involves  assimilation  to  nationals 
and  the  loss  of  the  rights  of  alienage.^ 

The  acceptance  of  minor  employment  of  a  non-political  character  ^ 
or  of  a  minor  municipal  office,^  or  the  express  reservation  and  recogni- 
tion by  the  foreign  government  of  original  nationality,^  will  not  be 
considered  as  involving  a  renunciation  of  diplomatic  protection. 

The  acceptance  of  public  office  abroad  may  serve  as  one  of  the  tests 
in  connection  with  other  circumstances  by  which  identification  with 
the  foreign  country  and  the  loss  of  the  right  to  American  protection 
are  determined.  In  this  sense,  the  acceptance  of  a  title  of  nobility 
from  a  foreign  government  is  a  circumstance  to  be  considered.^  In 
the  case  of  a  naturalized  citizen,  the  acceptance  of  public  office  from 
his  native  government  was  used,  prior  to  the  Act  of  1907,  as  one  of 
the  tests  to  determine  his  intent  to  abandon  his  adopted  citizenship, 
and  in  connection  with  other  circumstances,  such  as  residence  abroad 
and  establishment  in  business,  has  served  to  relieve  this  government 
from  the  dutj^  of  protecting  him.'' 

The  exercise  of  political  rights  or  participation  in  politics  in  a  for- 

1  The  Department  has  on  several  occasions  ruled  that  the  assumption  of  consular 
duties  for  a  foreign  government  will  not  deprive  a  citizen  of  the  U.  S.  of  his  American 
citizenship.  See,  under  the  former  law  when  oath  of  allegiance  did  not  involve  ex- 
patriation, Fish  V.  Stoughton,  2  Johns.  Cases,  407. 

-  Tchernoff,  op.  cit.,  210-211,  citing  certain  treaties. 

'  Giordana  (Italy)  v.  Venezuela,  ibid.,  cited  Ralston,  797  (assistant  engineer  in 
the  ministry  of  public  works);  Cole  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb. 
2468  (artisan  in  the  repair  of  gun  carriages,  dictum).  Nor  is  British  protection  for- 
feited under  such  circumstances,  Panama  Riot  Claims,  Naturalization  Rep.  App.  64. 

*  Burchard's  case,  Sec'y  Evarts  to  Mr.  Logan,  Sept.  19,  1879,  For.  Rel,  1880,  107; 
Mr.  Hill,  Ass't  Sec'y  of  State,  to  Mr.  Lombard,  May  12,  1900,  Moore's  Dig.  Ill,  785; 
Mr.  Uhl,  Act'g  Sec'y  of  State,  to  Mr.  Weil,  Oct.  4,  1894,  ibid.  784. 

=•  Robert  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  2477. 

«  Mr.  Bacon,  Act'g  Sec'y  of  State,  to  Mr.  Bryan,  May  16,  1907,  For.  Rel.,  1907, 
II,  957.    Mr.  Bacon  regarded  it  as  one  of  the  tests  of  "expatriation." 

'  Secretaries  Fish  and  Froli!io;huysen,  quoted  in  Moore's  Dig.  Ill,  766,  781,  782. 


816  THE    DIPLOMATIC    PROrfiCTlO.V    Ol'    CITIZENS   ABROAD 

eign  country  may  amount  to  an  implied  renunciation  of  diplomatic 
protection,  if  it  involves  an  identification  with  the  foreign  government,^ 
and  at  all  events  may  serve  as  one  among  several  criteria  to  de- 
termine whether  the  right  of  protection  has  been  lost.  Where  political 
rights  are  conferred  on  aliens  generally,  there  is  no  loss  of  protection. 
When  conferred  on  and  exercised  by  those  who  have  declared  their 
intention  of  becoming  citizens,  the  question  is  more  doubtful.  This 
is  frequently  the  case  in  the  United  States,  and  it  would  seem  that 
it  is  for  the  protecting  government  to  determine  whether  these  persons, 
who  in  strict  law  are  aliens,  have  lost  their  right  to  diplomatic  pro- 
tection. In  the  American  Civil  War,  when  such  persons  were  drafted 
for  service.  Great  Britain  first  insisted  upon  their  exemption  and  then 
upon  their  right  to  leave  the  United  States,  but  informed  their  subjects 
that  it  could  not  extend  its  protection  if  they  persisted  in  residing 
in  the  United  States.  France,  however,  asserted  the  right  to  protect 
its  subjects  under  these  circumstances. 


1  Moore's  Dig.  Ill,  §  480;  TchernofF,  op.  cit.,  210-211, 

2  Calvo,  II,  §§  674,  675;  Tchernoff,  op.  cit.,  206-207. 


CHAPTER  V 

FORFEITURE  OF  PROTECTION  BY  ACT  OF  CITIZEN— Con- 
tinued 

FAILURE  OF  PROPER  RECOURSE  TO  JUDICIAL  REMEDIES 

FAILURE   TO    EXHAUST   LOCAL   REMEDIES 

§  381.  Application  of  General  Rule. 

The  principle  of  international  law  by  virtue  of  which  the  alien  is 
deemed  to  tacitly  submit  and  to  be  subject  to  the  local  law  of  the 
state  of  residence  implies  as  its  corollary  that  the  remedies  for  a  viola- 
tion of  his  rights  must  be  sought  in  the  local  courts.  Almost  daily 
the  Department  of  State  has  occasion  to  reiterate  the  rule  that  a  claim- 
ant against  a  foreign  government  is  not  usually  regarded  as  entitled 
to  the  diplomatic  interposition  of  his  own  government  until  he  has 
exhausted  his  legal  remedies  in  the  appropriate  tribunals  of  the  country 
against  which  he  makes  claim.  There  are  several  reasons  for  this 
limitation  upon  diplomatic  protection:  first,  the  citizen  going  abroad 
is  presumed  to  take  into  account  the  means  furnished  by  local  law  for 
the  redress  of  wrongs;  secondly,  the  right  of  sovereignty  and  independ- 
ence warrants  the  local  state  in  demanding  for  its  courts  freedom 
from  interference,  on  the  assumption  that  they  are  capable  of  doing 
justice;  thirdly,  the  home  government  of  the  complaining  citizen 
must  give  the  offending  government  an  opportunity  of  doing  justice 
to  the  injured  party  in  its  own  regular  way,  and  thus  avoid,  if  possible, 
all  occasion  for  international  discussion;  fourthly,  if  the  injur}^  is  com- 
mitted by  an  individual  or  minor  official,  the  exhaustion  of  local  rem- 
edies is  necessary  to  make  certain  that  the  wrongful  act  or  denial 
of  justice  is  the  deliberate  act  of  the  state;  and  fifthly,  if  it  is  a  deliber- 
ate act  of  the  state,  that  the  state  is  willing  to  leave  the  wrong  un- 

817 


818  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

righted.  It  is  a  logical  principle  that  where  there  is  a  judicial  remedy, 
it  must  be  sought.  Only  if  sought  in  vain  and  a  denial  of  justice  es- 
tablished, does  diplomatic  interposition  become  proper.^  The  De- 
partment of  State  has  invoked  the  rule  on  innumerable  occasions 
both  in  the  case  of  claims  of  foreigners  against  the  United  States  ^ 
and  of  American  citizens  against  foreign  countries.'  One  of  the  best 
statements  of  the  rule  and  its  reason  was  made  by  Secretary  of  State 
McLane  in  1834: 

"Although  a  government  is  bound  to  protect  its  citizens,  and  see 
that  their  injuries  are  redressed,  where  justice  is  plainly  refused  them 
by  a  foreign  nation,  yet  this  obligation  always  presupposes  a  resort,  in 
the  first  instance,  to  the  ordinary  means  of  defence,  or  reparation,  which 
are  afforded  by  the  law^s  of  the  country  in  which  their  rights  are  infringed, 
to  which  laws  they  have  voluntarily  subjected  themselves  by  entering 
within  the  sphere  of  their  operation,  and  by  which  they  must  consent 
to  abide.  It  would  be  an  unreasonable  and  oppressive  burden  upon  the 
intercourse  between  nations,  that  they  should  be  compelled  to  investigate 
and  determine,  in  the  first  instance,  every  personal  offence,  committed 
l)y  the  citizens  of  the  one  against  those  of  the  other."  " 

1  The  principle  is  so  thoroughly  established  that  the  detailed  citation  of  authori- 
ties seems  hardly  necessary.  See,  however,  Vattel,  Bk.  II,  ch.  VIII,  §  103.  Fiore, 
Dr.  int.  cod.,  4th  ed.,  §  537;  Pradier-Fodcrc,  Cours  de  droit  diplomatique,  Paris, 
1899, 1,  524  et  seq.;  Tchernoff,  265  et  seq;  Calvo,  II,  §  674;  Seijas,  I,  77-80;  Phillimore 
II,  4;  Lomonaco,  218.  See  also  an  excellent  discussion  of  C.  C.  Hyde  before  the  Lake 
Mohonk  Conference,  20th  Report  (1914),  125-131. 

2  Citations  from  opinions  of  Attorneys  General  and  state  papers  in  Moore's  Dig.  VI, 
§  987,  Wharton,  II,  §  241,  and  quotations  from  Jefferson  and  Clay,  Moore's  Dig.  VI, 
p.  652.  See  also  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  West,  June  1,  1885,  For.  Rel., 
1885,  pp.  453,  4.56,  458;  Earl  Granville  to  Mr.  Adams,  Sept.  25,  1884,  75  St.  Pap. 
1042,  1047;  Practice  of  the  Netherlands  in  Pradier-Fodere,  Cours  de  dr.  dip.  I,  524, 
note. 

=  Extracts  printed  in  Moore's  Dig.  VI,  §987  and  Wharton,  II,  §241.  See  also 
Mr.  Gresham,  Sec'y  of  State,  to  Mr.  Hevner,  June  10,  1893,  Moore's  Dig.  VI,  271, 
282.  When  a  government  affords  what  appears  to  be  an  adequate  judicial  remedy 
against  itself,  the  U.  S.  will  usually  require  claimants  to  avail  themselves  of  it.  For 
example,  Latin-.\merican  countries  have  frequently  established  domestic  claims 
(•  )mmissions  to  adjudicate  upon  the  claims  of  foreigners  arising  out  of  revolutions. 
'I"he  Department  of  State,  e.  g.,  advised  American  citizens  to  present  their  claims 
arising  out  of  the  revohitionary  disturbances  in  Mexico,  in  1911,  to  the  Consultative 
C'laims  Commission  established  by  the  Mexican  government.  Foreign  governments 
arc  not  necessarily  bound  by  the  decisions  of  these  domestic  tribunals. 

*  Mr.  McLane,  Se(;'y  of  State,  to  Mr.  Shain,  May  28,  1834,  Moore's  Dig.  VI,  259 
and  again  at  658. 


FAILURE    TO    PiXHAUST   LOC;»L    REMEDIES  819 

The  application  of  the  rule  that  local  remedies  must  be  exhausted 
before  an  international  claim  may  properly  be  instituted  has  served 
to  dismiss  many  cases  brought  before  international  tribunals.^  How- 
ever, a  number  of  arbitral  awards  have  expressly  dispensed  with  the 
requirement  of  exhausting  local  remedies,  not  for  the  reason  that 
the  local  remedy  was  illusory  or  unsatisfactory  (different  illustrations 
of  which  will  be  discussed  presently)  but  on  jurisdictional  grounds, 
the  arbitrators  reasoning  that  by  the  submission  of  the  case  to  arbitra- 
tion the  two  governments  must  have  intended  to  confer  jurisdiction 
upon  the  tribunal  and  supersede  the  local  remedy.^  It  was,  therefore, 
expressly  provided  in  the  protocol  of  arbitration  between  France 
and  Venezuela  of  Feb.  11,  1913  that  claimants  must  prove  a  resort 
to  Venezuelan  courts  and  an  undue  delay  of  justice  (fifteen  months 
without  a  decision)  or  an  objection  to  the  municipal  decision  by  the 

»  Baldwin  (U.  S.)  v.  Mexico,  April  11,  1839,  Moore's  Arb.  3126;  Turner,  ibid.  3126; 
Wilson  (U.  S.)  V.  Mexico,  March  3,  1849,  ibid.  3021;  Medina  (U.  S.)  i>.  Costa  Rica, 
July  2,  1860,  ibid.  2317;  Pacific  Mail  (U.  S.)  v.  Colombia,  Feb.  10,  1864,  ibid.  1412; 
Petjple  of  Cinecue  (Mexico)  v.  U.  S.,  July  4,  1868,  ibid.  3127;  Selkirk  (U.  S.)  v.  Mexico, 
ibid.  3130,  Tehuantepec  Ship  Canal,  ibid.  3132,  Leichardt,  ibid.  3133,  Jennings  el  al., 
ibid.  3135,  Black  et  al.,  ibid.  3138,  Green,  ibid.  3139,  Burn,  ibid.  3140,  Slocum,  ibid. 
3140,  Pratt,  ibid.  3141,  Clavel,  ibid.  3141,  Ada,  ibid.  3143,  Atia,  ibid.  3144,  Smith, 
ibid.  3146,  Nolan,  ibid.  3147,  Cramer,  ibid.  3250,  McManus,  ibid.  3411;  Danford 
(U.  S.)  V.  Spain,  Feb.  12,  1871,  ibid.  3148;  Brig  Napier  (Gt.  Brit.)  v.  U.  S.,  May  8, 
1871,  ibid.  3152-3159  (prize  case);  Hubbell  (U.  S.)  v.  Great  Britain,  ibid.  3484;  Driggs 
(U.  S.)  V.  Venezuela,  Dec.  5,  1885,  ibid.  3160,  Corvvin,  ibid.  3210;  Oberlander  and 
Messenger  (U.  S.)  v.  Mexico,  March  2,  1897,  For.  Rel.,  1897,  370  at  382  et  seq..  Sen. 
Doc.  73,  55th  Cong.,  3rd  sess.,  85,  125;  French  spoliation  cases.  Gray  v.  U.  S.,  21  Ct. 
CI.  340;  Ship  Tom,  29  Ct.  CI.  68;  Brig  Freemason,  45  Ct.  CI.  555;  La  Guaira  L.  and 
P.  Co.  (U.  S.)  V.  Venezuela,  Feb.  17,  1903,  Ralston,  182;  De  Caro  (Italy)  v.  Venezuela, 
Feb.  13,  1903,  ibid.  810;  Comp.  General  of  the  Orinoco  (France)  v.  Venezuela,  Feb.  19, 

1902,  Sen.  Doc.  533,  59th  Cong.,  1st  sess.,  244. 

2  See  opinion  of  Day,  Arbitrator,  in  Metzger  (U.  S.)  v.  Haiti,  Oct.  18,  1899,  For. 
Rel.,  1901,  262,  275;  Young,  Smith  and  Co.  (U.  S.)  v.  Spain,  Feb.  12,  1871,  Moore's 
Arb.  3148;  Trumbull  (Chile)  ;;.  U.  S.,  Aug.  7,  1892,  ibid.  3569;  Davy  (Gt.  Brit.)  v. 
Venezuela,  Feb.  13,  1903,  Ralston,  410;  Aroa  Mines  (Gt.  Brit.)  v.  Venezuela,  Feb.  13, 

1903,  ibid.  359  (dictum);  Hoffman  (U.  S.)  v.  Mexico,  March  3,  1849,  Opin.  359  (not 
in  Moore).  In  Moses  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3127  and  Manasse 
(U .  S.)  V.  Mexico,  ibid.  3463,  two  cases  decided  by  Lieber,  Umpire,  the  grounds  of  de- 
cision are  not  convincing.  The  British-American  commission  of  1871,  assumed  juris- 
diction, notwithstanding  failure  to  resort  to  local  remedies  in  Crutchett  (Gt.  Brit.)  v. 
U.  S.,  May  8.  1871,  Moore's  Arb.  3734,  Braithwaite,  ibid.  3737,  and  Knowles,  ibid. 
3748.  See  also  the  Sally,  Hays  (U.  S.)  v.  Great  Britain,  Nov.  19, 1794,  ibid.  3101-3119. 


b20  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

French  government.^  The  construction  placed  by  arbitral  courts 
upon  the  so-called  Calvo  clause,  by  the  terms  of  which  a  claimant 
undertakes  by  contract  (usually  with  the  government)  to  resort  to 
the  local  courts  to  the  exclusion  of  diplomatic  intervention,  has  already 
been  fully  considered.^  Article  III  of  the  Terms  of  Submission  of  the 
British-American  Arbitration  under  the  agreement  of  August  18,  1910 
very  justly  provides: 

"The  Arbitral  Tribunal  shall  take  into  account  as  one  of  the  equities 
of  a  claim  to  such  extent  as  it  shall  consider  just  in  allowing  or  disallow- 
ing a  claim,  in  whole  or  in  part,  any  failure  on  the  part  of  the  claimant 
to  obtain  satisfaction  through  legal  remedies  which  are  open  to  him 
or  placed  at  his  disposal,  but  no  claim  shall  be  disallowed  or  rejected 
by  application  of  the  general  principle  of  international  law  that  the 
legal  remedies  must  be  exhausted  as  a  condition  precedent  to  the  validity 
of  the  claim."  » 

§  382.  Position  of  Latin-America. 

The  Latin-American  states  have  contended  vigorously  for  the  adop- 
tion by  European  states  of  the  principle  that  an  exhaustion  of  local 
remedies  and  the  establishment  of  a  denial  of  justice  are  conditions 
precedent  to  the  exercise  of  diplomatic  interposition.  The  principle 
has  been  incorporated  into  their  constitutions,  statutes  and  Pan- 
American  conventions,  and  has  found  expression  in  a  number  of  treaties 
between  the  states  of  Europe  and  Latin- America.^  Mexico  appears 
to  have  had  little  difficulty  in  negotiating  such  treaties.  Neither 
the  United  States  nor  Great  Britain  appears  to  have  consented  to 
enter  into  such  a  treaty  stipulation  with  a  Latin-American  state. ^ 
The  Latin-American  countries  have  concluded  many  treaties  of  this 
kind  among  themselves.® 

'  Protocol  between  France  and  Venezuela,  Feb.  11,  1913,  art.  II,  7  A.  J.  I,  L. 
(Suppl.),  218. 

2  Supra,  §§  375-377. 

'  Malloy's  Treaties,  III,  55. 

*  Infra,  §  390  el  seq.  See  also  art.  2  of  the  convention  for  the  establishment  of  a 
Central  American  Court  of  Justice,  Dec.  20,  1907.  Malloy's  Treaties,  II,  2400.  See 
Diaz  V.  Guatemala,  39  Clunet  (1912),  274. 

^  Except  in  so  far  as  such  a  limitation  is  contained  in  art.  10  of  the  treaty  of  Aug.  1, 
1911  between  Great  Britain  and  Bolivia,  Treaty  series,  1912,  223. 

«  Pradier-Fod6r6,  §  1370. 


QUALIFICATIONS   OF   THE   RULE  821 

While  these  states  have  invoked  their  sovereignty  and  independence 
as  a  legal  justification  for  insisting  on  the  duty  of  aliens  to  exhaust 
local  remedies  and  to  refrain  from  calling  upon  the  diplomatic  protec- 
tion of  their  own  governments  until  a  denial  of  justice  in  the  courts 
is  shown,  they  have  not  succeeded  in  securing  a  definite  acceptance 
of  this  principle  by  the  states  of  Europe.  The  European  countries 
and  the  United  States,  invoking  the  right  to  protect  their  subjects 
abroad,  upon  which  right  the  municipal  law  of  Latin- America,  they 
assert,  can  place  no  limitation,  pass  upon  each  case  as  it  arises  and 
determine  for  themselves  whether  it  appears  probable  that  a  resort 
to  local  courts  will  afford  an  adequate  remedy.  Their  unwillingness 
to  remit  their  citizens  unreservedly  to  the  local  courts  of  the  more 
backward  states  of  Latin-America  seems  to  arise  out  of  a  lack  of  con- 
fidence in  the  impartiality  of  those  courts  and  in  their  disposition 
to  accord  justice  to  the  foreigner.^  This  attitude  of  Europe  is  es- 
pecially noticeable  in  cases  where  the  Latin-American  government 
is  a  party  to  the  litigation.  In  a  recent  agreement  between  France 
and  Venezeula  for  the  settlement  of  certain  claims  of  French  citizens 
against  Venezuela,  it  has  been  expressly  provided,  that  after  the  ad- 
judication of  the  Venezuelan  courts  upon  a  claim,  France  shall  have 
the  right  to  object  to  the  decision  and  submit  the  claim  to  an  arbitral 
commission.^  It  is  quite  probable  that  with  the  growth  of  the  weaker 
Latin-American  countries  in  political  stability,  and,  incidental  thereto, 
an  increasing  confidence  on  the  part  of  foreign  countries  in  the  impar- 
tiality and  independence  of  the  judiciary,  foreign  countries  will  give 
evidence  of  a  greater  willingness  to  submit  the  rights  of  their  citizens 
and  subjects  to  the  decisions  of  the  local  courts,  and  to  decline  dip- 
lomatic interposition  until  local  remedies  have  been  exhausted. 

§  383.  Qualifications  of  the  Rule.    When  Unnecessary  to  Exhaust  Lo- 
cal Remedies. 

The  rule  that  local  remedies  must  be  exhausted  before  diplomatic 

interposition  is  proper  is  in  its  application  subject  to  the  important 

condition  that  the  local  remedy  sought  is  obtainable  and  is  effect- 

'  Infra,  §§  390  et  seq.,  396. 

*  Protocol  between  France  and  Venezuela,  Feb.  11,  1913,  art.  II,  Journal  Officiel, 
June  17,  1913,  p.  5198,  printed  in  7  A.  J.  I.  L.  (aupplement),  218. 


822  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

tive  in  securing  redress.  If  this  condition  is  absent,  it  would  be  futile 
and  an  empty  form  to  require  the  injured  individual  to  resort  to  local 
remedies.  As  Secretary  of  State  Fish  tersely  remarked:  "A  claimant 
in  a  foreign  state  is  not  required  to  exhaust  justice  in  such  state  when 
there  is  no  justice  to  exhaust."  ^  So,  where  the  local  tribunals  are 
of  such  a  nature  that  no  confidence  may  be  placed  in  them  and  no 
hope  may  be  entertained  of  obtaining  justice  from  them,^  or  where 
there  are  no  duly  established  courts  to  which  resort  is  "open  and 
practically  available,"  ^  it  is  unnecessary  to  exhaust  local  remedies. 

It  is  not  easy  to  determine  when  a  citizen  injured  abroad  is  to  be 
remitted  to  his  local  remedies  and  when  the  government  may  make 
his  case  the  subject  of  immediate  diplomatic  action.  In  a  general 
way,  this  may  be  said  to  depend  upon  whether  he  has  an  effective 
remedy  in  the  local  courts,  and  upon  whether  the  injury  is  of  a  nature 
sufficiently  flagrant  to  warrant  immediate  diplomatic  action  without 
requiring  a  preliminary  resort  to  or  exhaustion  of  local  remedies.  The 
difficulty  of  stating  any  general  rule  arises  from  the  fact  that  the  claim- 
ant's government  determines  in  its  discretion  which  method  of  proce- 
dure is  under  the  circumstances  proper.^  In  cases  of  wrongful  arrest 
and  false  imprisonment  by  local  authorities,  the  absence  of  any  uni- 
form rule  is  particularly  apparent.^ 

1  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Pile,  May  29,  1873,  Moore's  Dig.  VI,  677. 

2  Lord  Palmerston  on  the  Don  Pacifico  case  v.  Greece,  Hansard,  Pari.  Deb.  cxii, 
.381-383,  387;  Mr.  Everett,  Sec'y  of  State,  to  Mr.  Marsh,  Feb.  5,  1853,  in  case  of 
Dr.  King  v.  Greece,  Moore's  Dig.  VI,  262-264. 

3  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Buck,  Min.  to  Peru,  Nov.  1,  1886,  Moore's 
Dig.  VII,  267;  Mr.  Fish,  Sec'y  of  State,  to  Mr.  Foster,  Aug.  15,  1873,  ibid.  678; 
Gray  v.  U.  S.,  21  Ct.  CI.  340. 

*  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Morgan,  April  27,  1886,  H.  Ex.  Doc.  328, 
5l6t  Cong.,  1st  sess.,  p.  47;  Mr.  Bhiine,  Sec'y  of  State,  to  Mr.  Shannon,  Apr.  6,  1892, 
For.  Rel.,  1892,  p.  34  et  seq.;  Lord  Salisbury  to  Mr.  St.  John,  Aug.  21,  1885,  77  St. 
Pap.  1212.  Cases  of  illegal  capture  of  vessels  often  dispense  with  requirement  of 
exhausting  local  remedies.    Gushing  v.  U.  S.,  22  Ct.  CI.  1,  44. 

'  Resort  to  local  remedies  was  apparently  considered  unnecessary  in  Mcvs  case  v. 
Haiti,  Moore's  Dig.  VI,  768;  in  case  of  Angell,  Thomas  and  Pard(;e  r.  Gutiteinala; 
Master  of  Russian  bark  Hans  v.  U.  S.;  Hale's  case  v.  Argentina;  and  Lillywhite 
case  V.  Great  Britain,  ibid.  768-769.  It  was  insisted  upon,  however,  in  Warren's 
case  in  Ireland  (ibid.  661)  and  in  other  cases  in  England,  France  and  Honduras 
(ibid.  670-671). 


QUALIFICATIONS   OF   THE    RULE  823 

The  requirement  of  exhausting  local  remedies  has  been  dispensed 
with  as  unnecessary  by  the  Department  of  State  when  the  action  of 
the  higher  officials  or  authorities  of  the  foreign  government  causing 
the  injury  has  been  arbitrary  and  unjust,  and  there  appeared  to  be 
no  adequate  ground  for  believing  that  a  sufficient  remedy  was  af- 
forded by  judicial  proceedings.^  The  same  principle  has  been  applied 
by  international  arbitral  commissions. - 

Where  recourse  to  or  the  prosecution  of  an  appeal  before  the  local 
courts  appears  useless  or  impracticable  in  affording  a  claimant  relief, 
he  has  been  excused  from  appealing  to  or  exhausting  his  local  remedies. 
This  has  been  held  in  cases  where  the  local  courts  were  prohibited 
from  entertaining  jurisdiction  of  suits  against  the  state;  ^  where  the 
judges  were  menaced  and  controlled  by  a  hostile  mob;  ^  where  the 
payment  of  a  possible  judgment  was  entirely  a  matter  of  discretion 
with  the  defendant  government;  ^  or  where  an  appeal  to  the  highest 
court  from  the  circumstances  of  the  case  appeared  impracticable.® 
In  these  cases  the  resort  to  local  courts  would  not  have  resulted  in 
an  effective  remedy.  In  a  few  prize  cases,  it  has  been  held  that  in 
face  of  a  uniform  course  of  decisions  in  the  highest  courts,  a  reversal 

1  Mr.  Hay,  Sec'y  of  State,  Oct.  25,  1901  in  Venezuela,  Asuntos  Internacionales, 
1903,  177;  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Mr.  Morgan,  May  19,  1884,  and 
Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Jackson,  July  20,  1885,  Moore's  Dig.  VI,  679; 
Same  to  same,  Sept.  7,  1886,  ibid.  680;  Mr.  Cadvvalader  to  Mr.  Foster,  Sept.  22,  1874, 
ibid.  678.  See  also  77  St.  Pap.  1212  and  1225  and  Akerman,  Atty.  Gen.,  in  1.3  Op. 
Atty.  Gen.  547,  .550. 

2  Moses  (U.  S.)  V.  Mexico,  July  4,  1868,  Moore's  Arb.  3127;  Grannan  (U.  S.)  v. 
Peru,  Dec.  4,  1868,  ibid.  1652;  Johnson  (U.  S.)  v.  Peru,  ibid.  1656;  Davy  (Gt.  Brit.) 
I'.  Venezuela,  Feb.  13,  1903,  Ralston,  410. 

'Ruden  (U.  S.)  ;;.  Peru,  Dec.  4,  1868,  Moore's  Arb.  16.53,  1655;  Grannan  (U.  S.) 
V.  Peru,  ibid.  1652;  Johnson  (U.  S.)  v.  Peru,  ibid.  1656;  dictum  in  Fretz  fU.  S.)  v. 
Colombia,  Feb.  10,  1864,  iUd.  2560;  North  and  South  Amer.  Construction  Co.  (U.  S.) 
V.  Chile,  Aug.  7,  1892,  ibid.  2318  (arbitrary  suppression  of  local  remedy).  See  also 
supra,  p.  .339. 

^  Grannan  (U.  S.)  v.  Peru,  ibid.  1652,  Johnson,  ibul.  1656. 

5  The  Xepfnne  (U.  S.)  v.  Great  Britain,  Nov.  19,  1794,  Moore's  Arb.  3076-3100. 

^  This  ruling  has  been  made  on  several  occasions  in  prize  cases.  Ship  Governor 
Bowdnin  v.  U.  S.  (French  Spoliations  Act  of  Jan.  20,  1885,  36  Ct.  CI.  3.38;  appeal 
court  9,000  miles  distant);  Ship  Tom  v.  IT.  S.,  29  Ct.  CI.  68;  Carmalt  (Gt.  Brit.)  v. 
U.  S.,  May  8,  1871,  Hale's  Rep.  90,  Moore's  Arb.  3157;  McLennan  (Gt.  Brit.)  v. 
U.  S.,  ibid.  3158.    See  also  the  Peg(ry,  1  Cranch,  103,  107. 


824  THE    DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

of  the  condemnation  being  hopeless,  an  appeal  was  excused;  ^  but 
this  rule  was  most  strictly  construed,  and  if  a  substantial  right  of 
appeal  existed,  failure  to  prosecute  an  appeal  operated  as  a  bar  to  re- 
lief.- Where  the  question  is  presented  as  to  whether  the  government 
of  a  country  has  discharged  its  duty  in  rendering  local  protection 
to  the  citizens  of  another  nation,  the  United  States  has  contended 
that  that  government  cannot  be  the  final  judge  of  its  own  conduct.^ 

A  palpable  denial  of  justice  in  the  lower  courts  has  on  several  occa- 
sions been  held  by  the  Department  of  State  '^  and  by  arbitral  tribunals  ^ 
to  relieve  a  claimant  from  the  necessity  of  exhausting  his  local  remedies. 

A  claimant  is  not,  however,  relieved  from  exhausting  his  local  rem- 
edies by  alleging  his  inability,  through  poverty,  to  meet  the  expenses 
involved;  ®  his  ignorance  of  his  right  of  appeal;  "^  the  fact  that  he  acted 
on  the  advice  of  counsel;  ^  or  a  pretended  impossibility  or  uselessness 
of  action  before  the  local  courts.^ 

We  have  already  adverted  to  the  attempts  of  the  states  of  Latin- 
American  to  restrict  aliens  to  their  recourse  to  the  local  courts.  When 
foreign  governments  deem  the  conditions  of  such  recourse  too  onerous, 

^  Kane's  notes  on  commission  of  July  4,  1831  between  U.  S.  and  France,  Moore's 
Arb.  4472;  Bark  Jones  (U.  S.)  v.  Great  Britain,  Feb.  8,  1853,  ibid.  3046. 

2  Schooner  Peggy,  1  Cranch,  103,  107;  Ship  Tom,  39  Ct.  CI.  290;  Brig  Freemason, 
45  Ct.  CI.  555,  560. 

3  Mr.  Blaine,  Sec'y  of  State,  to  Mr.  Dougherty,  Jan.  5,  1891,  Moore's  Dig.  VI,  805. 

*  Mr.  Bayard,  Sec'y  of  State,  to  the  President,  Feb.  26,  1887,  Moore's  Dig.  VI, 
667;  Mr.  Bayard,  to  Mr.  Copeland,  Feb.  23,  1886  (dictum),  ibid.  699;  Mr.  Marcy, 
Sec'y  of  State,  to  Mr.  Clay,  May  24,  1855,  ibid.  659;  Mr.  Fish,  Sec'y  of  State,  to 
Mr.  Pratt,  March  20,  1875,  ibid.  661. 

6  Glenn  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3138  ("general  unsympathetic 
attitude  of  the  lower  court");  Prize  cases  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  ibid. 
3152,  3159  (misfeasance  or  default  of  capturing  government  in  preventing  appeal, 
diclum  by  Frazer,  commissioner);  Montano  (Peru)  v.  U.  S.,  Jan.  12,  1863,  ibid.  16.30, 
1634. 

*  Mr.  Adee,  Act'g  Sec'y  of  State,  to  Signor  Carignani,  Oct.  10,  1901,  For.  Rel., 
1901,  310;  Mr.  Olney,  Sec'y  of  State,  to  Mr.  Dcssaw,  Nov.  19,  1896,  Moore's  Dig. 
VI,  670;  Gravely  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  31.5S;  McLeod, 
ibid.  3158;  Horton,  ibid.  3158;  Napier  (U.  S.)  v.  Great  Britain,  ibid.  3152. 

^Carson  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3157;  Creighton,  ibid. 
3158. 

» Heycock  (Gt.  Brit.)  v.  U.  S.,  May  8,  1871,  Moore's  Arb.  3157. 

*  Diaz  V.  Guatemala,  Central  American  Court  of  Justice,  39  Clunet  (1912),  274. 


LACHES,    LIMITATION    AND    PRESCRIPTION  825 

e.  g.,  as  in  the  case  of  the  Venezuelan  law  of  Feb.  14,  1873,  or  consider 
the  local  remedy  provided  as  insufficient  to  afford  the  necessary  re- 
lief or  redress,  they  will  not  regard  their  citizens  as  bound  to  resort 
to  or  exhaust  their  local  remedies,  but  will  in  their  discretion  make 
the  claim  a  subject  of  diplomatic  negotiation.^ 

When  the  two  governments  have  by  agreement  made  a  pecuniary 
claim  the  subject  of  diplomatic  negotiation  the  claimant  is  considered 
as  relieved  of  the  necessity  of  having  recourse  to  the  local  courts,  unless 
his  own  government  so  consents  and  directs.^  It  has  already  been 
observed  that  an  agreement  to  arbitrate  has  been  construed  as  having 
the  same  effect.^  The  agreement  is  deemed  to  withdraw  the  case  from 
the  courts,  the  local  remedy  being  superseded  by  the  international 
remedy.  Even  apart  from  any  agreement,  when  a  citizen  has  appealed 
to  his  government  for  protection  and  the  government  has  undertaken 
to  support  his  claim  diplomatically,  recourse  to  the  local  courts  is 
no  longer  necessary,  unless  required  by  his  own  government.* 

LACHES,    LIMITATION    AND    PRESCRIPTION 

§  384.  Efifect  of  Delay  in  Presenting  Claim. 

Closely  related  to  the  failure  to  exhaust  local  remedies  is  the  un- 
necessary delay  in  resorting  to  a  remedy.  The  claimant  who  permits 
too  long  a  time  to  elapse  before  making  known  his  claim,  loses  his 
remedy  and  therefore  his  legal  right  in  all  systems  of  jurisprudence. 
Domat  well  said:  ''The  indolence  of  those  who  are  dilatory  in  recover- 
ing their  property  and  claiming  what  is  due  them,  should  be  punished, 
and  .  .  .  those  who  are  indolent  shall  impute  to  themselves  the  pun- 
ishment." ^  This  principle  has  been  denominated  as  a  loss  of  right 
by  prescription,  a  term  which  requires  explanation  for  the  law3'er  of 

1  Wharton,  II,  §  242,  Moore's  Dig.  VI,  §  990. 

^  Moore's  Dig.  VI,  §  989.  See  also  U.  S.  v.  Diekelman,  92  U.  S.  520,  524,  where 
the  Court  of  Claims  was  designated  as  the  appropriate  forum  with  consent  of  Prussian 
government. 

3  Day,  Arbitrator,  in  Metzger  (U.  S.)  v.  Haiti,  Oct.  18,  1899,  For.  Rel.,  1901,  262 
and  supra,  p.  819,  note  2. 

*  Mr.  Hill,  Act'g  Sec'y  of  State,  to  Mr.  Merry,  Sept.  29,  1900,  For.  Rel.,  1900,  809, 
Moore's  Dig.  VI,  68.5-686. 

6  Domat,  Civil  and  public  law  (Strahan's  ed.,  1732),  Lib.  8,  t.  7,  §  4. 


826  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAL» 

the  common  law,  in  that  acquisitive  prescription,  or  the  acquisition  of 
right  or  title  by  long-continued  and  uncontested  possession  must  be  dis- 
tinguished from  extinctive  or  negative  prescription,  by  which  is  meant 
the  limitation  of  action  or  loss  of  a  remedy.^ 

The  principles  of  public  policy — based  upon  such  practical  considera- 
tions as  the  destruction  and  loss  of  evidence,  the  inability  to  call  wit- 
nesses, etc., — which  place  a  bar  upon  the  prosecution  of  stale  and 
aged  claims,  hardly  require  discussion.  The  necessity  for  peace  from 
litigation  after  the  lapse  of  a  certain  period  of  time  is  as  applicable 
to  public  law  as  it  is  to  private  law.  "  Time  itself  is  an  unwritten  statute 
of  repose,"  and  while  states,  in  the  prosecution  of  international  claims, 
are  not  bound  by  any  specific  statute  of  limitations,  the  principle 
underlying  these  statutes  and  the  doctrine  of  laches  are  applied 
by  them.  We  cannot  do  better  here  than  to  quote  the  able  statement 
of  Dr.  Francis  Wharton,  formerly  Solicitor  of  the  Department  of  State : 

"While  international  proceedings  for  redress  are  not  bound  by  the 
letter  of  specific  statutes  of  limitations,  they  are  subject  to  the  same 
presumptions,  as  to  payment  or  abandonment,  as  those  on  which  stat- 
utes of  limitation  are  based.  A  government'  cannot  any  more  rightfully 
press  against  a  foreign  government  a  stale  claim  which  the  party  holding 
declined  to  press  when  the  evidence  was  fresh  than  it  can  permit  such 
claims  to  be  the  subject  of  perpetual  litigation  among  its  own  citizens. 

"It  must  be  remembered  that  statutes  of  limitations  are  simply 
formal  expressions  of  a  great  principle  of  peace  which  is  at  the  foundation 
not  only  of  our  own  common  law,  but  of  all  other  systems  of  civilized 
jurisprudence.  It  is  good  for  society  that  there  should  come  a  period 
when  litigation  to  assert  alleged  rights  should  cease;  and  this  principle, 
which  thus  limits  litigation  when  wrongs  are  old  and  evidence  faded, 
is  as  essential  to  the  administration  of  justice  as  is  the  principle  that 
sustains  litigation  when  wrongs  are  recent  and  evidence  fresh.  'Rules 
for  the  application  of  such  limitations,'  said  Mr.  Justice  Swayne  in 
Wood  V.  Carpenter,  101  U.  S.  139,  'are  vital  to  the  welfare  of  society 
and  are  favored  in  the  law.  They  are  found  and  approved  in  all  systems 
of  enlightened  jurisprudence.  They  promote  repose  by  giving  security 
and  stability  to  human  affairs.  An  important  pul)lic  policy  lies  at  their 
foundation.    They  stimulate  to  activity  and  punish  negligence.    While 

'  Holland's  Jurisprudence,  11th  ed.,  1910,  p.  213.  See  also  Angell,  J.  K.,  Limita- 
tions of  actions  at  law  and  suits  in  equity  and  admiralty,  Oth  ed.,  by  John  W.  May, 
Boston,  1876,  Ch.  I;  Hewitt,  E.  P.,  Statutes  of  limitations,  London,  1893,  pp.  1-3; 
Wood,  H.  G.,  Limitations  of  actions  at  law  and  in  equity,  3rd  ed.,  by  J.  M.  Gould- 
Boston,  1901. 


LACHES  827 

time  is  constantly  destroying;  the  evidence  of  rights,  they  supply  its 
place  by  a  presumption  which  renders  proof  unnecessary.  Mere  delay, 
extending  to  the  limit  prescribed,  is  itself  a  conclusive  bar.  The  bane 
and  antidote  go  together.'  "  i 

§  385.  Laches. 

The  unreasonable  delay  or  neglect  in  enforcing  a  claim  at  a  proper 
time  is  in  itself  a  ground  for  its  rejection,  quite  apart  from  the  matter 
of  lapse  of  time,  which  merely  raises  certain  (often  conclusive)  pre- 
sumptions. The  reason  for  the  rule  is  that  the  delay  in  the  presenta- 
tion of  the  claim  prevents  the  defendant  government  from  adducing 
defenses  and  invoking  remedies  of  which,  had  it  had  timely  notice 
of  the  claim,  it  might  have  availed  itself.  Laches  operates  as  a  waiver 
of  rights.  What  is  unreasonable  delay  or  neglect  depends,  of  course, 
upon  the  particular  facts  and  circumstances  of  each  case.  The  period 
of  delay  may  on  occasion  be  very  short. ^  The  failure  to  present  a 
claim  either  at  all  or  in  good  time  to  a  commission  established  for  the 
purpose  of  hearing  claims,^  or  to  enter  an  appeal  from  a  municipal 
decision  within  the  time  allowed,  provided  the  time  and  the  circum- 
stances are  fair  and  reasonable,^  have  been  held  to  constitute  justi- 
fications for  dismissal  of  a  claim  on  the  ground  of  laches.  When  the 
time  for  municipal  suit  or  appeal  was  too  short,  the  claimant,  if  an  alien, 
has  been  excused  by  his  government  for  the  failure  to  bring  his  action 
within  the  time  allowed,^  and  has  been  accorded  diplomatic  redress. 

1  Note  in  3  Wharton,  972,  §  239,  Appendix. 

^  Davis  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  406  (failure  for  two  years 
to  notify  Venezuela  of  the  erroneous  delivery  of  consigned  goods  by  customs  officials, 
dictum);  Underbill  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  45,  46  (failure  to 
bring  action  promptly  against  tort-feasor,  dictum  by  Paul,  Venezuelan  Commis- 
sioner); Turner  (U.  S.)  v.  Mexico,  Apr.  11,  18.39,  Moore's  Arb.  3126. 

'  Commission  of  July  4,  1831,  between  U.  S.  and  France  dismissed  claims  in  which 
claimant  failed  to  avail  himself  of  the  relief  providerl  under  the  treaty  of  1800.  Kane's 
notes,  p.  90.  Haggerty  et  al.  (U.  S.)  v.  Mexico,  Act  of  March  3,  1849,  Moore's  .\rb. 
2665  (failure  to  present  claim  to  1839  commission,  a  jurisdictional  condition,  without 
explaining  omission).  See  also  Accessory  Transit  Co.  (U.  S.)  v.  Costa  Rica,  July  2, 
1860,  Moore's  Arb.  1563;  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Muruaga,  Dec.  3,  1886, 
For.  Rel,  1887,  1015,  1022. 

*  The  Fame  (U.  S.)  v.  Great  Britain,  Nov.  19,  1794,  Moore's  Arb.  3100  (failure  to 
enter  appeal  until  18  months  after  time  allowed). 

6  Supra,  p.  823. 


828  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

Governments  frequently  establish  domestic  tribunals  to  hear  claims 
of  individuals  against  the  state.  The  Southern  Claims  Commission 
was  such  a  tribunal,  and  the  Court  of  Claims  and  Heads  of  Depart- 
ments, under  various  general  and  special  acts,  have  acted  and  act 
in  that  capacity.  In  practically  all  cases,  a  statute  of  limitations 
is  provided  for,  by  which  citizens  and  aliens  are  bound. ^  Foreign 
governments,  particularly  those  of  Latin-America  have  often  estab- 
lished such  domestic  commissions,  particularly  at  the  end  of  revolu- 
tionary disturbances,  and  have  set  a  definite  limitation  of  time  for 
the  presentation  of  claims.  If  this  period  has  seemed  unreasonably 
short,  and  foreign  governments  have  regarded  the  local  government 
as  internationally  responsible  for  the  injury  upon  which  the  claim 
of  their  citizen  is  based,  these  governments  have  not  considered  them- 
selves as  deprived  of  the  right  of  presenting  a  diplomatic  claim  by 
reason  of  the  claimant's  failure  through  inability  to  appear  on  time 
before  the  local  tribunal.^  Thus,  Secretary  Hay  in  1899,  said:  "Even 
admitting  that  a  government  may  fix  a  limitation  of  time  for  the  pres- 
entation of  international  claims,  this  would  afford  no  justification 
for  fixing  a  time  unreasonably  brief,  and  the  tacit  consent  of  a  claim- 
ant government  to  such  a  measure  cannot  be  deduced  from  the  fact 
that  it  did  not  expressly  object  to  it."  ^ 

§  386.  Limitation. 

Strictly  speaking,  the  lapse  of  a  long  time  without  presenting  a 
claim  raises  a  presumption  of  laches.  But  in  view  of  the  fact  that 
there  is  no  specific  statute  of  limitations  in  international  law,  a  claim- 
ant may  overcome  the  presumption  of  laches  arising  from  long  delay 
by  showing  a  valid  excuse  or  justification.     Thus,  international  com- 

'  The  application  of  the  statute  of  limitations  under  the  Bowman  and  other  Acts, 
and  the  application  of  the  doctrine  of  laches  by  the  Court  of  Claims  and  in  the  De- 
I)artments  is  discussed  by  C.  F.  Carusi  in  an  article  on  Government  contracts,  43 
Amer.  L.  Rev.  (1909),  161,  165-169. 

2  Mr.  Clayton,  Sec'y  of  State,  to  Mr.  Van  Alen,  July  10,  1849,  Moore's  Dig.  VI, 
1(K)2.  This  position  might  be  justified  on  the  ground  that  a  proper  international 
obligation  cannot  be  avoided  by  municipal  statute.  See  Spader  (U.  S.)  v.  Venezuela, 
I'Vb.  17,  190.3,  Ralston,  162;  Morris'  Report,  326,  327.  Natives,  of  course,  are  bound 
liy  the  municipal  statute. 

•  Mr.  Hay  to  Mr.  Dudley,  March  28,  1899,  as  printed  in  Moore's  Dig.  VI,  1003. 


DECISIONS   OF   INTERNATIONAL  TRIBUNALS  829 

missions  have  held  that  a  claim  is  not  barred  by  prescription  when 
there  was  no  laches  on  the  part  of  the  claimant  or  his  government 
in  the  presentation  of  the  claim, ^  or  where  the  reasons  for  invoking 
prescription  do  not  exist. 

The  Department  of  State  has  often  declined  to  bring  to  the  attention 
of  a  foreign  government  a  claim  presented  after  such  a  long  time  that 
the  difficulty  of  a  proper  investigation  of  the  facts  or  the  disappear- 
ance of  evidence  may  reasonably  be  assumed.  In  1885,  Secretary  Bayard 
wrote:  "In  view  of  the  long  delay  which  occurred  in  instituting  the 
present  proceedings,  the  injury  having  been  inflicted  in  1863,  and  the 
difficulty  of  arriving  at  the  true  state  of  the  facts  .  .  .  the  Depart- 
ment has  considered  it  futile  to  institute  proceedings."  -  Similarly, 
claims  which  have  been  allowed  by  claimants  to  rest  or  which  have 
not  been  heard  of  for  a  great  many  years  have  been  allowed  to  drop 
by  the  Department.  Failure  to  avail  oneself  of  a  remedy  and  enforce 
one's  right  for  an  unreasonably  long  time  gives  color  to  a  suspicion 
of  fraud  or  bad  faith,  which  only  the  clearest  evidence  may  overcome. 

§  387.  Decisions  of  International  Tribunals. 

International  commissions  have  had  frequent  occasion  to  pass  upon 
the  effect  of  a  failure  to  present  a  claim  for  a  prolonged  period  of  time. 
While  they  have  not  allowed  municipal  statutes  or  rules  of  limitation 
to  bar  an  international  claim  ^  or  considered  any  particular  length 
of  time  as  constituting  a  period  of  limitation,  they  have,  nevertheless, 
recognized  and  applied  the  principle  of  prescription  so  as  to  bar  numerous 
claims  the  presentation  of  which  was  inordinate^  delayed.  They 
have  acted  on  the  doctrine  that  the  "principle  of  peace"  from  litiga- 
tion which  lies  at  the  basis  of  all  statutes  of  limitation  is  as  binding 
on  an  international  court  in  its  administration  of  justice  as  the  statute 

J  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  328. 

2  Mr.  Bayard  to  Mr.  O'Connor,  Oct.  29,  1885,  Sen.  Doc.  287,  57th  Cong.,  1st  sess., 
10.  See  also  Mr.  Bayard  to  Messrs.  Morris  and  Fillette,  July  28,  1888,  Moore's  Dig. 
VI,  1005. 

3  Pious  Fund  Claim  (U.  S.)  v.  Mexico,  1902,  U.  S.  Agents'  Rep.,  Sen.  Doc.  28, 
57th  Cong.,  2nd  sess.,  17,  858,  cited  in  Ralston's  International  arbitral  law,  §  5Q3; 
Spader  (U.  S.)  v.  Venezuela,  Feb.  17,  1903.  Ralston,  162;  Gentini  (Italy)  v.  Venezuela, 
Feb.  13,  1903,  ibid.  729.  For  other  awards  relating  to  limitation  and  prescription, 
see  Ralston,  op.  cil.,  §§  564-578  and  Moore's  Arb.  IV,  ch.  LXIX. 


830  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROA.D 

is  on  a  municipal  court.  The  reasons  for  the  appHcation  of  the  rule 
of  prescription  were  tersely  expressed  by  Umpire  Plumley  of  the  British- 
Venezuelan  commission  of  1903  in  the  Stevenson  case:  ^ 

"When  a  claim  is  internationally  presented  for  the  first  time  after  a 
long  lapse  of  time,  there  arises  both  a  presumption  and  a  fact.  The 
presumption,  more  or  less  strong  according  to  the  attendant  circum- 
stances, is  that  there  is  some  lack  of  honesty  in  the  claim,  either  that 
there  was  never  a  basis  for  it  or  that  it  has  been  paid.  The  fact  is  that 
by  the  delay  in  making  the  claim  the  opposing  party — in  this  case  the 
government — is  prevented  from  accumulating  the  evidence  on  its  part 
which  would  oppose  the  claim,  and  on  this  fact  arises  another  presump- 
tion that  it  could  have  been  adduced.  In  such  a  case  the  delay  of  the 
claimant,  if  it  did  not  establish  the  presumption  just  referred  to,  would 
work  injustice  and  inequity  in  its  relation  to  the  respondent  Govern- 
ment." 

International  commissions  have  dismissed  on  one  or  other  of  these 
grounds  claims  in  which  no  complaint  had  been  made  for  fifteen  or 
sixteen  years  after  the  date  of  the  injuries  complained  of,^  and  in  other 
cases  have  barred  claims  unasserted  or  not  presented  for  periods  of 
twenty-three,^  twenty-six/  twenty-eight,^  thirty-one,^  thirty-nine,'' 
forty-three  ^  or  more  ^  years.  Many  of  these  cases,  as  will  have  been 
observed,  came  before  the  United  States- Venezuelan  commission  of 
1885,  and  two  of  the  ablest  opinions  over  written  on  the  question 
of  prescription  are  those  by  Commissioner  Little  in  the  Williams  case 
and  Commissioner  Findlay  in  the  Barberie  case. 

1  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  327,  328  (dictum). 

2  Black  and  Stratton  (U.  S.)  v.  Mexico,  July  4,  1868,  Moore's  Arb.  3138,  3139; 
Mossman  (U.  S.)  v.  Mexico,  ibid.  4180,  4181  (dictum).  See  also  the  Horatio  (U.  S.)  v. 
Venezuela,  Dec.  5,  1885,  ibid.  3027  (dictum), 

3  Bettiker  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Opinions,  Washington,  1890,  p.  92 
{dictum,  disallowed  for  lack  of  citizenship). 

*  Williams  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  4181-4199,  Opinion 
by  Little,  Commissioner. 

^  Driggs  (U.  S.)  V.  Venezuela,  Dec.  5,  1885,  Opinions,  403;  Forrest  (U.  S.)  v.  Vene- 
zuela, Dec.  5,  1885,  Moore's  Arb.  2944,  2946. 

«  Gentini  (U.  S.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  729. 

7  Corwin  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3210  ^'^20  (dictum, 
disallowed  on  other  grounds). 

8  Spader  (U.  S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  162. 

8  Barberie  (U.  S.)  v.  Venezuela,  Dec.  5, 1885,  Moore's  Arb.  4199-4203,  Opinion  by 
Findlay,  Commissioner.  ' 


DECISIONS    OF   INTERNATIONAL   TRIBUNALS  831 

Prescription  is  a  rule  of  inference  and  establishes  a  presumption. 
When  actual  facts  disprove  the  inference  and  the  presumption,  which 
are  founded  in  the  highest  equity — namely,  the  avoidance  of  possible 
injustice  to  the  defendant  ^  because  of  ignorance  of  the  existence  of 
the  claim — the  reason  for  the  application  of  the  rule  ceases.  In  several 
cases,  therefore,  in  which  timely  notice  of  the  existence  of  the  claim 
had  been  given  to  the  defendant  government,  with  full  opportunity 
to  examine  witnesses  and  the  evidence  and  to  adduce  contradictory 
proof,  it  was  held  that  there  was  no  danger  of  injustice  to  the  defend- 
ant, and  notwithstanding  the  fact  that  the  claim  had  not,  for  one 
reason  or  another,  been  prosecuted  for  many  years,  the  tribunals 
declined  to  apply  the  rule  of  prescripton.^  Similarly,  where  public 
records  support  the  existence  of  the  claim,  the  reason  for  the  principle 
ceases.^  Again,  where  the  impoverishment  ^  or  the  dilatoriness  of 
the  defendant  government  ^  is  responsible  for  the  delay  in  prosecution 
or  payment,  the  claim  having  been  seasonably  brought  to  its  attention, 
the  claim  is  not  considered  as  barred  by  prescription. 

The  presentation  of  the  claim  at  any  time  after  its  origin  will  inter- 
rupt the  running  of  the  prescriptive  period,  and  if  the  circumstances 
themselves,  particularly  the  absence  of  any  presumption  of  waiver 
or  abandonment,  or  the  shortness  of  the  time  elapsed,  do  not  operate 
to  inflict  injustice  upon  the  defendant  government,  the  defense  of 
prescription  will  not  be  admitted.^  The  existence  of  public  records, 
as  in  the  case  of  unpaid  national  bonds  and  claims  for  overcharged 
taxes  and  duties,  which  refutes  any  inference  of  injustice  to  the  de- 

1  Umpire  Ralston's  statement  in  Gentini  (Italy)  v.  Venezuela,  Feb.  13,  1903, 
Ralston,  727;  Giacopini  (Italy)  v.  Venezuela,  ibid.  767. 

2  Gentini  (Italy)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  720,  727;  Giacopini  (Italy) 
V.  Venezuela,  ibid.  76.5,  767;  Tagliaferro  (Italy)  v.  Venezuela,  ibid.  764,  765;  Stevenson 
(Gt.  Brit.)  V.  Venezuela,  Feb.  13,  1903,  ibid.  327,  329. 

3  Dictum  in  Gentini  (Italy)  v.  Venezuela,  ibid.  730;  Williams  (U.  S.)  v.  Venezuela, 
Dec.  5,  188.5,  Moore's  Arb.  4194  (dictum). 

*  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  Ralston,  329. 

s  Roberts  (U.'S.)  v.  Venezuela,  Feb.  17,  1903,  Ralston,  142  (.30  years  elapsed  be- 
tween presentation  and  adjudication;  the  defendant  government,  if  the  rule  of  pre- 
scription had  been  applied,  would  have  been  allowed  to  reap  advantage  from  its 
own  dilatoriness);  Stevenson  (Gt.  Brit.)  v.  Venezuela,  Feb.  13,  1903,  ibid.  327,  329. 

«  Butterfield  (U.  S.)  v.  Denmark,  Dec.  6,  1888,  Moore's  Arb.  1185,  1205;  For.  Rel., 
1889,  p.  159;  Canada  (U.  S.)  v.  Brazil,  March  14,  1870,  ibid.  1733,  1745. 


832  THE  DIPLOMATIC   PROTECTION   OF   CITIZENS  ABROAD 

fendant  government  by  reason  of  a  belated  demand  for  payment, 
better  justifies  the  favorable  award  of  the  commission  of  1853  between 
Great  Britain  and  the  United  States,  on  claims  for  the  refund  of  ex- 
cess duties,  than  the  ground  upon  which  the  decisions  were  apparently 
supported,  namely,  "that  no  statutes  of  limitation  can  be  pleaded 
in  bar  of  claims  arising  under  treaties."  ^ 

Long  delay  in  the  presentation  of  a  claim  has  on  occasion  been  held 
to  stop  the  running  of  interest  during  the  period  of  delay. - 

In  the  Daniel  case  before  the  French-Venezuelan  commission  of 
1902,  it  was  held  that  the  defense  of  prescription  had  to  be  pleaded, 
the  commission  being  unable  to  take  it  into  consideration  of  its  own 
accord.^ 

In  the  case  of  the  Macedonian  against  Chile,  the  governments  took 
the  precaution  of  stipulating  that  the  question  of  prescription  should 
be  excluded  from  the  consideration  of  the  arbitrator.'* 

1  King  and  Gracie  (U.  S.)  v.  Great  Britain,  Feb.  8,  1853,  Moore's  Arb.  4179,  4180; 
Similar  cases  (Gt.  Brit.)  v.  U.  S.  ibid.  4180. 

2  Donnell's  Executor  (U.  S.)  v.  Venezuela,  Dec.  5,  1885,  Moore's  Arb.  3545;  Russia 
V.  Turkey,  July  22,  1910,  Award  of  the  Hague  Court  of  Arbitration,  Nov.  11,  1912, 
7  A.  J.  I.  L.  (1913),  195,  199. 

«  Piton  (France)  v.  Venezuela,  Feb.  19, 1902,  Sen.  Doc.  533,  59th  Cong.,  Ist  sess., 
462;  also  reported  as  Daniel  (France)  v.  Venezuela,  Ralston,  507,  509. 
«  Macedonian  (U.  S.)  v.  Chile,  Nov.  10,  1858,  Moore's  Arb.  1449,  1461. 


CHAPTER  VI 

LIMITATIONS   ARISING   OUT   OF   SUBJECT-MATTER   AND 
POLITICAL  CONSIDERATIONS 

§  388.  Subject-matter. 

It  has  alreadj^  been  observed  that  claims  arising  out  of  contracts 
are  not  ordinarily  pressed  diplomatically,  but  that  official  assistance 
is  confined  to  the  use  of  good  offices.^ 

Similarly,  claims  arising  out  of  injuries  received  during  belligerent 
operations  are  usually  not  recoverable,  under  the  accepted  principles 
of  international  law.  The  nature  of  the  transaction  in  which  the  injury 
is  received  bars  the  claim.  The  limitations  upon  this  rule  have  already 
been  amply  considered. - 

The  decision  of  the  Spanish  Treaty  Claims  Commission  in  the  case 
of  the  Maine  ^  may  be  said  to  support  the  principle  that  the  officers 
and  seamen  of  a  public  vessel  have  no  individual  claims  against  a 
foreign  government  guilty  of  a  national  injury  upon  the  vessel  on  which 
they  serve,  the  individual  claim  being  merged,  and  indeed  lost,  in 
the  national  claim.  In  view  of  the  fact,  however,  that  the  United  States 
has  on  various  occasions  successfully  prosecuted  claims  against  foreign 
governments  arising  out  of  injuries  committed,  in  time  of  peace,  upon 
the  officers  or  seamen  of  a  public  vessel,  the  ground  of  decision  in  the 
Maine  case  seems  unsatisfactory.  It  may  with  far  greater  reason  be 
supported  upon  the  ground  set  forth  by  Commissioner  Maury  in  his 
concurring  opinion,  namely,  that  the  war  between  the  United  States 
and  Spain  and  the  treaty  of  peace  put  an  end  to  and  extinguished 
all  grievances  and  causes  of  difference  connected  with  its  origin.^ 

1  Supra,  §  113,  aad  exceptions  to  the  rule  noted  in  same  chapter. 

*  Supra,  §  98,  et  seq. 

*  McCann  v.  U.  S.,  Final  Rep.  of  Commission,  May  2,  1910,  p.  11. 

*  Supra,  p.  362.    Opinion  of  the  Commission,  March  t>,  1902,  concurring  opinion  of 

833 


834  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABHOAl) 

There  has  been  much  difference  of  opinion  upon  the  effect  of  war 
upon  the  claims  of  the  citizens  of  one  of  the  belUgerents  upon  the 
government  of  the  other.  The  answer  to  the  question  as  to  whether 
such  claims  are  extinguished  by  the  war  or  survive  it  depends  upon 
the  relation  of  the  claims  to  the  causes  of  the  war.  Thus,  the  treaty 
of  Ghent  between  the  United  States  and  Great  Britain  has  been  held 
to  have  extinguished  the  previous  claims  against  Great  Britain  arising 
out  of  spoliations  on  American  commerce  under  the  orders  in  council 
during  the  Napoleonic  Wars,  the  treaty  having  made  no  mention 
of  compensation.  By  the  preponderating  weight  of  authority,  claims 
based  upon  transactions  disconnected  with  the  causes  of  war  survive 
the  war  and  the  treaty  of  peace,  even  if  not  specifically  mentioned 
in  the  treaty.^ 

In  earlier  chapters  of  this  Part,  it  has  been  observed  that  claims 
founded  upon  transactions  against  public  policy,  or  which  shock  the 
moral  sense,  or  which  are  unneutral  in  character,  are  barred  from 
consideration  by  the  claimant  government.^ 

Claims  involving  the  determination  of  title  to  real  estate  are  always 
left  to  the  lex  rei  sitce,  and  are  not  made  a  ground  of  diplomatic  inter- 
position except  in  cases  of  denial  of  justice,  after  a  vain  exhaustion 
of  local  remedies.^  Such  matters  include  questions  relating  to  succes- 
sion and  other  methods  of  acquiring  title.  Similarly,  it  is  not  within 
the  scope  of  the  duties  of  a  diplomatic  officer  to  assist  American  citi- 
zens in  the  conduct  of  their  private  law  suits  unless  discrimination 
or  a  denial  of  justice  is  practiced  against  them.^ 

§  389.  Political  Considerations. 

Political  considerations  operate  in  many  instances  to  prevent  or 
limit   the   prosecution   of   claims   against   foreign   governments.     For 

Commissioner  Maury,  y).  4.    See  criticism  of  decision  in  .38  American  L.  Rev.  (1904), 
790-792,  from  Legal  Observer. 

»  See  the  extracts  printed  in  Moore's  Dig.  VI,  §  1053.  White  (U.  S.)  v.  Mexico, 
Act  of  March  3,  1849,  Opin.  287  (not  in  Moore). 

2  See,  e.  g.,  Moore's  Dig.  VI,  §  974. 

3  Moore's  Dig.  VI,  §  993;  Mr.  Hale,  Ass't  Sec'y  of  State,  to  Mr.  Kulusaowski, 
May  8,  1872,  Moore's  Dig.  VI,  324. 

*  Mr.  Rives,  Ass't  Sec'y  of  State,  to  Mr.  Coakley,  April  11,  1888,  Moore's  Dig. 
VI,  325. 


POLITICAL  CONSIDERATIONS  835 

example,  the  obligations  imposed  by  the  necessity  to  maintain  friendly 
relations  with  foreign  states  may  often  serve  to  prevent  the  institu- 
tion of  a  claim  which  is  apt  to  disturb  amicable  relations.  The  unset- 
tled condition  of  a  foreign  government  often  makes  it  inopportune 
to  press  pecuniary  claims,  because  of  the  improbability  of  payment, 
and  because  of  the  tendency  to  embarrass  the  foreign  government 
and  disturb  international  amity.^  In  like  manner,  the  impoverish- 
ment of  the  defendant  government  has  been  regarded  as  an  obstacle, 
by  reason  of  futility,  to  the  presentation  of  a  claim. ^  Again,  the  re- 
lations of  the  claimant  and  defendant  country  in  the  matter  of  recipro- 
cal claims  may  be  such  that  the  presentation  of  a  claim  would  be  futile, 
e.  g.,  if  the  claimant  state  has  declined  to  consider  pecuniary  claims 
instituted  against  it  by  the  defendant  state,  as  is  the  case,  e.  g.,  in  the 
refusal  of  the  United  States  to  entertain  the  East  Florida  interest 
claims  of  Spain. ^  Strained  relations  from  any  cause  would  naturally 
constitute  a  bar  to  the  prosecution  of  pecuniary  claims.  The  political 
inexpediency  of  presenting  a  claim,  a  matter  entirely  within  the  dis- 
cretion of  the  claimant  government,  is,  therefore,  a  most  potent  factor 
in  limiting  diplomatic  protection,  and  may,  under  present  conditions, 
serve  to  bar  man}'-  a  well-founded  and  just  claim. 

The  respect  due  to  the  independence  and  territorial  jurisdiction 
of  states  is  the  reason  for  the  limitations  which  claimant  states  impose 
upon  themselves  in  requiring  their  citizens  to  resort  to  their  local 
remedies,  in  not  demanding,  in  the  case  of  states  normally  well  or- 
ganized, any  more  effective  guaranties  for  the  protection  of  aliens 
than  are  accorded  to  citizens,  and  in  invoking  the  local  administrative 
machinery  and  all  amicable  methods  for  the  redress  of  grievances 
before  resorting  to  more  vigorous  measures  to  exact  reparation. 

1  Mr.  Seward,  Sec'y  of  State,  to  Mr.  Otterbourg,  August  8,  1867,  Dipl.  Cor.,  1867, 
II,  445. 

2  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  O'Connor,  Oct.  29,  1885,  Sen.  Doc,  287,  57th 
Cong.,  1st  sess.,  p.  10. 

'  Moore's  Arb.  4519-4531. 


CHAPTER  Vn 

LIMITATIONS    ARISING    OUT    OF    MUNICIPAL    LEGISLA- 
TION OF  THE  DEFENDANT  STATE 

§  390.  Originating  Conditions. 

It  would  hardly  be  proper  to  leave  the  discussion  of  limitations 
upon  diplomatic  protection  without  some  consideration  of  the  various 
attempts  of  some  of  the  weaker  states  of  the  world,  where  diplomatic 
interposition  is  most  frequent,  to  avoid,  by  legislative  enactment, 
the  exercise  of  coercive  measures  by  foreign  nations  in  behalf  of  their 
nationals.  The  exploited  countries  of  the  world,  particularly  some 
of  the  states  of  Latin-America,  furnish  the  conditions  for  the  insti- 
tution of  large  numbers  of  foreign  claims,  namely,  the  presence  of 
a  great  many  foreigners,  large  investments  of  foreign  capital,  and  weak 
judicial  and  administrative  organization.  The  exploiting  countries, 
often  taking  advantage  of  their  superior  power,  have  compelled  these 
weaker  countries  to  pay  innumerable  foreign  claims,  not  always  founded 
upon  strict  justice;  and  notwithstanding  a  constant  improvement 
in  political  organization  and  the  comparative  rarity  of  revolutionary 
disturbances,  diplomatic  claims  have  not  ceased  to  be  pressed.  Many 
of  the  exploiting  countries  have  apparently  been  unwilling  to  entrust 
the  rights  of  their  nationals  unreservedly  to  the  administrative  and 
judicial  machinery  of  the  exploited  states.  This  condition  has  naturally 
led  some  of  the  weaker  states,  particularly  in  Latin-America,  to  in- 
voke various  rights  and  principles, — their  rights  of  equality,  independ- 
ence, and  territorial  jurisdiction,  the  principle  of  equality  between 
national  and  alien,  the  rule  that  the  alien  must  accept  the  local  law 
as  he  finds  it,  and  the  necessity  of  exhausting  local  remedies  and  es- 
tablishing a  technical  denial  of  justice  as  conditions  precedent  to  a 
well-founded  international  claim — in  the  effort  to  relieve  themselves 
of  the  onerous  and  unjust  pressure  of  foreign  claims.     It  is  not  with- 

S3() 


ORIGINATING    CONDITIONS  837 

out  a  considerable  d^ree  of  truth  that  the  governments  and  publicists 
of  various  states  of  Latin-America  allege  that  the  European  powers 
too  readily  accede  to  the  demands  of  their  nationals  for  diplomatic 
interposition,  however  exaggerated  and  doubtful  their  claims  may  be; 
that  in  answer  to  their  contention  that  the  foreigner  should  submit 
his  claim  to  the  local  courts,  the  European  powers  send  a  threat,  often 
followed  by  a  warship;  that  confronted  with  this  show  of  force  legal 
rights  are  cast  to  the  yrinds  and  that  the  heel  of  the  oppreso5or,  in  the 
form  of  diplomatic  inter\'ention  for  the  exaction  of  pa^^-ment  of  doubt- 
ful claims,  saps  their  \-itality  and  stunts  their  gro\^th  and  develo{>- 
ment  into  healthy  members  of  the  international  family,  which  posi- 
tion international  law  legally  assigns  to  them. 

The  attitude  of  the  exploiting  countries  in  the  matter  embodies 
the  view  that  the  political  organization  of  many  Latin-American 
countries  is  so  weak,  that  judges  depend  so  thoroughly  upon  executive 
favor,  that,  in  the  light  of  their  experience,  they  must  conclude  that 
their  citizens  cannot  secure  from  the  courts  that  impartiaUty  to  which 
they  are  entitled,  and  that  they  cannot  leave  the  rights  of  their  citi- 
zens unreservedly  to  the  determination  of  the  local  courts.  Even 
where  the  South  American  states  have  succeeded  by  treaty  and  dip- 
lomacy in  securing  a  recognition  of  the  principle  that  claims  of  foreigners 
can  only  be  diplomatically  pressed  where,  after  an  exhaustion  of  local 
remedies,  there  has  been  a  denial  of  justice,  the  exploiting  countries 
undertake  to  judge  for  themselves  what  they  will  consider  a  denial 
of  justice,  so  that  the  principle,  while  in  conformity  \s-ith  the  inter- 
national law  appUed  among  the  European  states  themselves,  is.  in 
its  application  to  Latin- America,  extremely  flexible.  A  judgment, 
they  say,  may  in  spite  of  the  obser\-ance  of  forms  be  nevertheless 
prejudicial  to  the  interests  of  their  citizens  and  they  reser^-e  the  right 
to  determine  whether  in  each  particular  case  justice  has  been  in  any 
degree  denied. 

In  \-iew  of  these  conditions,  the  Latin-American  states,  rehing 
upon  the  doctrines  of  Calvo  and  other  pubhcists — that  pecuniary- 
claims  against  the  state  must  be  submitted  to  local  courts,  and  only 
in  the  event  of  a  denial  of  justice  become  the  subject  of  diplomatic 
interposition — and  upon  the  principles  of  international  law.  equally 


838  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

supported  by  publicists  and  the  practice  of  European  nations  among 
themselves — namely,  the  right  of  a  sovereign  state  to  independence, 
to  complete  territorial  jurisdiction,  to  establish  the  conditions  under 
which  foreigners  may  enter  and  reside  in  the  country — have  in  their 
constitutions,  laws,  and  treaties  embodied  certain  principles  whose 
object  has  been  to  restrict  the  diplomatic  interposition  of  foreign 
countries  to  its  narrowest  limits  and  thus  relieve  themselves  of  one 
of  their  most  onerous  burdens. 

These  principles  and  provisions  of  law  may  be  considered  in  con- 
nection with  the  different  categories  of  claims,  the  pressure  of  which 
they  have  sought  to  prevent  or  overcome:  first,  claims  arising  out 
of  injuries  to  person  and  property  suffered  in  civil  wars,  inflicted  both 
by  state  authorities  and  revolutionists;  secondly,  claims  based  upon 
acts  of  violence  and  oppression  of  various  kinds,  such  as  false  arrest, 
imprisonment  and  expulsion;  and,  finally,  claims  arising  out  of  contracts 
concluded  with  aliens.  The  question  of  public  debts  and  the  Drago 
doctrine  have  been  considered  in  our  discussion  of  contractual  claims 
in  general. 

§  391.  Legislative  Limitations  upon  Diplomatic  Protection.    Civil  War 
Injuries. 

First,  then,  as  to  civil  war  injuries.  The  responsibility  of  the  state 
for  such  injuries  has  already  been  considered  (supra,  §  93).  The 
Latin-American  states  assert  that  an  injury  received  by  an  alien  in 
civil  war  constitutes  no  better  ground  of  claim  than  an  injury  received 
in  an  international  war.  They  assert  that  states  do  not  recognize 
in  such  cases  any  right  to  indemnity  in  favor  of  their  own  citizens 
and  that  aliens  cannot  enjoy  any  such  privilege,  in  view  of  the  fact 
that  when  they  enter  a  state  they  submit  themselves  to  the  local  law. 
Calvo,  whose  doctrine  that  pecuniary  claims  cannot  ordinarily  justify 
diplomatic  interposition  we  have  already  to  some  extent  discussed, 
states  his  principles  in  the  matter  of  claims  arising  out  of  injuries 
received  in  civil  war  in  the  following  terms :  ^ 

1.  "The  principle  of  indemnity  and  diplomatic  intervention  in  behalf 

*  Calvo,  Le  droit  international,  §§  1280-1297,  the  principle  being  stated  in  v.  Ill, 
§  1297,  pp.  155-156. 


LEGISLATIVE    LIMITATIONS    UPON    DIPLOMATIC    PROTECTION         839 

of  foreigners  for  injuries  suffered  in  cases  of  civil  war  has  not  been  ad- 
mitted by  any  nation  of  Europe  or  America." 

2.  "The  governments  of  powerful  nations  which  exercise  or  impose 
this  pretended  right  against  states  relatively  weak,  commit  an  abuse 
of  power  and  force  which  nothing  can  justify  and  which  is  as  contrary 
to  their  own  legislation  as  to  international  practice  and  political  ex- 
pediency." 1 

The  frequent  occasions  upon  which  Latin-American  states  have 
been  compelled  to  pay  indemnities  to  foreigners  for  such  injuries  ^ 
has  induced  a  number  of  them  to  include  clauses  in  their  constitutions, 
laws,  treaties,  and  conventions  of  Pan-American  Congresses,  exempt- 
ing themselves  from  all  obligation  to  indemnify  aliens  for  injuries 
sustained  during  civil  war,  not  only  when  these  are  caused  by  insur- 
gents,^ but  also  when  the  injury  is  caused  by  the  authorities  in  the 
suppression  of  the  uprising  or  revolution.    The  clause  usually  reads: 

"Neither  [citizens]  nor  foreigners  shall  have  in  any  case  the  power 
to  claim  from  the  government  indemnification  for  damages  arising  out 
of  injuries  done  to  their  persons  or  property  by  revolutionists." 

The  last  word   of  this  clause,    "revolutionists,"   has  been  extended 
in  meaning  to  cover  insurrectionists  or  turbulent  bodies  of  men,  who 

1  In  support  of  these  principles,  he  cites  Rutherforth,  de  Martens,  Miraflores, 
Torres  Caicedo,  and  Vattel;  see  to  the  same  effect,  Pradier-Fodere,  Traite  de  droit 
international  pubHc,  §§  204-205,  1224. 

Calvo  extends  the  principle  as  well  to  case  of  injuries  sustained  during  mob  vio- 
lence (Vol.  3,  §  1271,  pp.  133-134;  Vol.  6,  §  256,  p.  231). 

It  may  be  added  that  under  the  term  "civil  war,"  the  Latin-American  states 
include  political  commotions,  insurrections  and  tumults  having  in  view  a  change  in 
administration  or  political  organization  by  force  of  arms. 

2  After  the  civil  war  in  Chile  in  1891,  1  R.  G.  D.  I.  P.  (1894),  164  and  171;  3  ibid. 
(1896),  478;  4  ibid.  (1897),  416-418;  at  the  end  of  the  civil  war  in  Venezuela  in  1892, 
2  R.  G.  D.  I.  P.  (1895),  344;  at  the  end  of  the  civil  war  of  1893-4  in  Brazil,  4  R.  G. 
D.  I.  P.  (1897),  403  et  seq.;  Seijas,  El  derecho  international,  V,  544-551;  and  on  other 
occasions,  2  R.  G.  D.  I.  P.  (1895),  338  and  supra,  p.  243. 

5  Constitution  of  Guatemala,  Art.  14,  Rodriguez,  American  Constitutions,  I,  238; 
Salvador,  Art.  46,  Rodriguez,  I,  268;  Venezuela,  Arts.  14  and  15,  Rodriguez,  I,  201, 
and  in  arts.  20  and  21  of  the  Constitution  of  Aug.  4,  1909;  Haiti,  Art.  185,  Rodrigeuz, 
I,  85;  Honduras,  Art.  142,  Rodriguez,  I,  388;  Honduras  decree  of  Feb.  24,  1868, 
61  St.  Pap.  529.  Ecuador,  law  of  August  25,  1892,  Art.  12,  84  State  Papers,  645; 
Venezuela,  law  of  April  16,  1903,  Art.  17,  96  State  Papers,  647;  Peru,  decree  of  Octo- 
ber 12,  1868,  Diplomatic  Correspondence  (For.  Rel.),  1868,  Pt.  2,  p.  887;  Salvador, 
decree  of  April  13,  1908,  For.  Rel.,  1908,  706.  Legislative  limitations  are  cited  by  J. 
Goebel,  Jr.,  in  his  article  in  8  A.  J.  I.  L.  (1914),  833  et  seq. 


840  THE    DIPLOMATIC   PROTECTION    OF   CITIZENS   ABROAD 

in  the  name  of  revolution  may  rob  the  store  of  a  foreigner,  tear  up 
a  railroad  built  and  owned  by  a  foreigner,  or  do  other  violent  damage. 
There  is  no  reservation  or  qualification  in  the  clause,  even  in  case 
of  negligence  by  the  authorities  in  failing  to  prevent  or  suppress  the 
uprising.  In  the  case  of  such  a  clause  included  in  an  earlier  constitu- 
tion of  Guatemala,  the  representatives  of  the  United  States,  Great 
Britain,  France,  Germany,  Spain  and  Italy  gave  notice  of  their  de- 
termination to  protect  their  fellow-citizens  in  person  and  property 
to  the  extent  authorized  by  the  law  of  nations,  irrespective  of  the 
local  enactments  of  the  laws  of  Guatemala.^ 

The  convention  on  the  rights  of  aliens  adopted  at  the  Second  Pan- 
American  Conference  at  Mexico  in  1901,  to  which  the  United  States 
did  not  subscribe,  reads: 

''The  states  are  not  responsible  for  damages  sustained  by  aliens 
through  acts  of  rebels  or  individuals  and  in  general  for  damages  origi- 
nating from  fortuitous  causes  of  any  kind,  considering  as  such  the  acts 
of  war  whether  civil  or  national,  except  in  the  case  of  failure  on  the  part 
of  the  constituted  authorities  to  comply  with  their  duties."  ^ 

The  treaties  that  have  been  concluded  between  European  and  Amer- 
ican states  providing  for  exemption  from  responsibility  in  cases  of 
civil  war  do  not  extend  the  exemption  to  cases  where  state  authorities 
have  been  negligent.^ 

1  Mr.  Logan  to  Mr.  Evart,  January  17,  1881,  For.  Rel.,  1881,  p.  98. 

^  Second  International  Conference  of  American  States,  Sen.  Doc.  330,  57th  Cong., 
1st  sess.,  p.  228. 

'  Alvarez,  Le  droit  international  americain,  Paris,  1910,  p.  122,  and  the  following 
treaties: 

Germany  and  Mexico,  Dec.  5,  1882,  Art.  18,  Martens'  Reciieil  des  traites.  Vol.  59, 
p.  474. 

Sweden  and  Norway  and  Mexico,  July  29,  1885,  Art.  21,  ibid.,  Vol.  63,  p.  COO. 

France  and  Mexico,  Nov.  27,  1886,  Art.  11,  ibid.,  Vol.  65,  p.  843. 

Italy  and  Mexico,  April  16,  1889,  Art.  12,  April  16,  1890,  Art.  12,  ibid.,  Vol,  68, 
l)p.  711  and  771. 

Belgium  and  Mexico,  June  7,  1895,  Art.  15,  ibid.,  Vol.  73,  p.  73. 

Germany  and  Colombia,  July  23,  1892,  Art.  20,  ibid..  Vol.  09,  p.  842. 

Italy  and  Colombia,  Oct.  27,  1892,  Art.  21,  ibid.,  Vol.  72,  p.  313. 

Spain  and  Peru,  July  16,  1897,  Art.  4,  Olivart's  Colecci6n  de  tratados  de  Espafia, 
Vol.  12,  p.  .348;  4  R.  G.  D.  I.  P.  (1897),  795. 

Spain  and  Honduras,  Nov.  17,  1894,  Art.  4,  Olivart,  op.  cit.,  Vol.  11,  p.  156. 

Spain  and  Colombia,  April  28,  1894,  Art.  4,  Olivart,  op.  cit.,  Vol.  11,  p.  63. 


LEGISLATIVE    LIMITATIONS    UPON    DIPLOMATIC    PROTECTION         841 

The  Institute  of  International  Law  deprecates  the  practice  of  con- 
chiding  treaties  in  which  states  hold  themselves  irresponsible  for  in- 
juries inflicted  during  civil  war  insurrections  or  riots.  The  resolution 
passed  at  the  session  of  1900  reads  as  follows: 

"The  Institute  of  International  Law  recommends  that  states  should 
refrain  from  inserting  in  treaties  clauses  of  reciprocal  irresponsiljility. 
It  thinks  that  such  clauses  are  wrong  in  excusing  states  from  the  per- 
foi-mance  of  their  duty  to  protect  their  nationals  abroad  and  their  duty 
to  protect  foreigners  within  their  own  territory.  It  thinks  that  states 
which  by  reason  of  extraordinary  circumstances  do  not  feel  able  to 
assure  in  a  manner  sufficiently  efficacious  the  protection  of  foreigners 
on  their  territory  can  escape  the  consequences  of  such  a  state  of 
things  only  by  temporarily  denying  to  foreigners  access  to  their  ter- 
ritory." 1 

European  nations  in  supporting  claims  of  their  citizens  arising  out 
of  civil  wars  and  insurrections,  regardless  of  whether  insurgents  or 
authorities  caused  the  injury,  take  the  ground  that  the  responsibility 
of  the  state  is  due  to  a  lack  of  diligence  in  preventing  or  suppressing 
uprisings.  This  ground,  it  is  believed,  could  hardly  be  general,  for 
"the  highest  interests  of  the  state  are  too  deeply  involved  in  the  avoid- 
ance of  such  commotions  to  allow  the  supposition  to  be  entertained 
that  they  have  been  caused  by  carelessness  on  its  part  which  would 
affect  it  with  responsibility  towards  a  foreign  state."  ^  Moreover, 
if  they  were  negligent  in  fact,  it  would  be  extremel}^  difficult  to  prove, 
and  if  the  claims  rested  upon  this  basis  alone  few  of  them  could  be 
prosecuted  to  payment.  As  a  matter  of  fact,  the  ground  is  advanced 
for  plausibility  only,  and  assuming  that  the  states  are  so  organized 
that  civil  commotion  is  only  a  fortuitous  event  and  not  one  invited 
by  lack  of  proper  political  and  police  organization,  we  must  support 
the  Latin-American  states  in  their  endeavors  to  be  relieved  from  the 
diplomatic  pressure  of  claims  resulting  from  injuries  sustained  in  the 
operations  incident  to  civil  war. 

'  Annuaire,  1900,  pp.  254-256. 

-  Hall,  International  law,  5th  ed.,  1904,  p.  22.3.  See  also,  Fiore,  Nouveau  droit 
international  public,  Antoine's  translation,  §  673  et  seq.;  Fillet,  Les  lois  de  la  euerre, 
p.  29;  Wiesse,  Le  droit  international  appliqu6  aux  guerres  civiles,  §  14;  Leval,  La 
protection  diplomatique,  §  103;  Pittard,  Protection  des  nationaux,  1896,  pp.  281- 
282. 


842  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

§  392.  Legislative  Limitations  to  Avoid  Claims  Based  upon  Tortious 
Injuries. 

The  second,  and  perhaps  the  largest,  class  of  claims  to  forestall 
which  various  Latin-American  states  have  enacted  legislation  limit- 
ing the  diplomatic  protection  of  foreigners,  are  those  arising  out  of 
acts  of  violence  or  oppression  in  times  of  nominal  peace.  The  limita- 
tion consists  in  denying  the  lawfulness  of  diplomatic  interposition 
in  these  cases,  except  where  there  is  a  denial  of  justice.  In  enacting 
such  legislation,  these  states  of  Latin-America  base  themselves  squarely 
upon  the  Calvo  doctrine,  namely,  that  every  claim  advanced  by  a 
foreigner,  whether  against  an  individual  or  against  the  state,  must 
find  its  final  settlement  before  the  local  courts,  and  only  in  the  event 
of  a  denial  of  justice  can  diplomatic  interposition  be  entertained. 
The  law  of  Venezuela,  typical  of  many  of  these  provisions,  reads  as 
follows  (law  of  April  16,  1903,  Art.  11): 

"  Neither  domiciled  aliens  nor  those  in  transit  have  the  right  to  have 
recourse  to  diplomatic  intervention  except  when  legal  means  having 
been  exhausted  before  the  competent  authorities,  it  is  clear  that  there 
has  been  a  denial  of  justice,  or  a  notorious  injustice  has  been  done  or 
that  there  has  been  an  evident  violation  of  the  principles  of  interna- 
tional law."  ^ 

Article  3  of  the  Convention  adopted  by  the  Second  Pan-American 
Conference  -  on  the  rights  of  aliens  provides: 

"Wherever  an  alien  shall  have  claims  or  complaints  either  civil, 
criminal  or  administrative,  whether  against  a  state  or  its  citizens,  he 

196  State  Papers,  647,  and  8  R.  D.  I.  prive  (1912),  p.  9;  Venezuela,  Executive 
Decree  of  Nov.  13,  1912,  8  A.  J.  I.  L.  (1914),  Suppl.  174-175  and  criticism  by  A.  de 
Busschere  on  the  ground  of  its  liberality  in  3  Rev.  de  derecho  y  leg.  (Caracas),  Oct. 
1913,  pp.  3-6;  see  also  Costa  Rica,  law  of  December  20,  1886,  Moore's  Dig.  VI, 
pp.  269-270;  Salvador,  law  of  September  27,  1886,  Art.  39,  Moore's  Dig.  VI,  267, 
For.  Rel.,  1887,  p.  69;  Salvador,  Legislative  decree  of  May  10/30,  1910,  arts.  4  and 
18,  Libro  rosado;  Ecuador,  law  of  August  26,  1892,  Art.  10,  84  State  Papers,  64.5; 
Mexico,  law  of  May  28,  1886,  Art.  3.5,  Legislacion  mexicana.  Vol.  17,  p.  474  et  seq.,  For. 
Rel.,  189.'),  II,  1012;  Guatemala,  Constitution,  Art.  23,  Rodriguez,  I,  239;  Nicaragua, 
Constitution,  Art.  11,  Rodriguez,  I,  362;  Peru,  law  of  .\pril  17,  1846,  Pradier-Fod6r^, 
op.cit.,  Ill,  234;  Honduras,  Constitution,  Art.  14,  Alvaxez,  op.cit.,  120;  Bolivia,  decree 
of  May,  1871,  For.  Rel.,  1871,  p.  .39. 

2  Sen.  Doc.  330,  57th  Cong.,  1st  seas.,  p.  228. 


CLAIMS   BASED    UPON  TORTIOUS  INJURIES  843 

shall  present  his  claims  to  a  competent  court  of  the  country  and  such 
claims  shall  not  be  made  through  diplomatic  channels  except  in  the 
cases  where  there  shall  have  been  on  the  part  of  the  court  a  manifest 
denial  of  justice  or  unusual  delay,  or  evident  violation  of  the  principles 
of  international  law." 

This  convention,  which  expresses  the  Latin-American  contention, 
has  been  incorporated  into  their  constitutions  and  statutes  and  has 
found  expression  in  a  number  of  treaties  concluded  between  European 
and  American  states.^  Mexico  seems  to  have  had  littie  difficulty 
in .  negotiating  such  treaties.  In  1890,  the  United  States  declined 
to  conclude  a  treaty  with  Ecuador  containing  such  a  clause,  not  be- 
cause the  United  States  did  not  recognize  the  principle,  but  because 
difficulty  was  felt  in  introducing  into  "our  conventional  relations 
with  a  single  state  stipulations  which,  although  not  novel  in  design, 
are  yet  so  in  form,  and  which  might  for  that  reason  be  open  to  mis- 
construction." ^ 

In  some  treaties  the  exemption  from  diplomatic  interposition,  ex- 
cept in  cases  of  manifest  denial  of  justice,  has  specific  reference  only 
to  the  case  of  aliens  taking  part  in  civil  struggles  and  provides  that 
these  shall  be  treated  as  nationals  without  recourse  to  diplomatic 
interposition  except  in  cases  of  denial  of  justice.^  As  will  be  noted, 
these  aliens  are  frequently  considered  as  nationals  by  local  legisla- 

1  Germany  and  Mexico,  Dec.  5,  1882,  Art.  18,  Martens'  Recueil  des  traites.  Vol.  59, 
p.  474;  Sweden  and  Norway  and  Mexico,  July  29,  1885,  Art.  21,  ihid.,  Vol.  6.3,  p.  690; 
France  and  Mexico,  Nov.  27,  1886,  Art.  11,  ibid.,  Vol.  65,  p.  843;  Holland  and  Mexico, 
Sept.  22,  1897,  Art.  16,  ibid.,  Vol.  83,  p.  188;  Germany  and  Colombia,  July  23,  1892, 
Art.  20,  ihid.,  Vol.  69,  p.  842;  Italy  and  Colombia,  Oct.  27,  1892,  Art.  21,  ibid.,  Vol. 
72,  p.  313;  Spain  and  Peru,  July  16,  1897,  Art.  6,  Olivart's  Coleccion  de  tratados  de 
Espana,  Vol.  12,  p.  348,  4  R.  G.  D.  I.  P.  (1897),  795;  Spain  and  Colombia,  April  28, 
1894,  Art.  6,  Olivart,  op.  cit.,  Vol.  11,  p.  63;  France  and  Venezuela,  Nov.  26,  1885, 
Art.  5,  Martens'  Recueil,  Vol.  62,  p.  684;  United  States  and  Peru,  Sept.  6,  1870, 
Art.  37,  Martens'  op.  cit..  Vol.  51,  p.  107;  Pradier-Foder^,  op.  cit..  Ill,  236;  For.  Rel., 
1883,  p.  913;  Great  Britain  and  Bolivia,  August  1,  1911,  art.  10,  Treaty  Series,  1912, 
223.    See  also  Tchernoff,  La  protection  des  nationaux,  pp.  295-296. 

2  Mr.  Blaine,  Secretary'  of  State,  to  Mr.  Caamano,  May  19,  1890,  Moore's  Dig.  VI, 
270. 

'  Spain  and  Ecuador,  May  23,  1888,  Art.  3,  Olivart's  Coleccion  de  tratados  de 
Espana,  Vol.  9,  p.  27;  Spain  and  Honduras,  Nov.  17,  1894,  Art.  3,  Olivart,  op.  cit., 
Vol.  11,  p.  156;  Belgium  and  Ecuador,  March  5,  1887,  Art.  3,  Martens'  Recueil, 
Vol.  65,  p.  741;  Italy  and  Colombia,  Oct  27,  1892,  Art.  5,  ibid..  Vol.  72,  p.  310. 


844  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

tion,  and  most  countries  limit  diplomatic  interposition  in  their  case 
to  gross  violations  of  the  laws  of  war  as  applied  against  them. 

§  393.  Subtle  Legislative  Measures  to  Avoid  Interposition. 

Besides  these  frank  attempts  to  restrict  diplomatic  interposition,  much 
ingenuity  has  been  shown  by  various  states  of  Latin- America  in  devis- 
ing more  subtle  measures  to  bring  about  the  desired  results.  The  first 
method  is  to  provide  that  "foreigners  are  entitled  to  enjoy  all  the  civil 
rights  enjoyed  by  natives,"  and  that  "a  nation  has  not,  nor  does  it  recog- 
nize in  favor  of  foreigners,  any  other  obligations  or  responsibilities  than 
those  established  b}'  [its]  constitution  and  laws  in  favor  of  [its]  citi- 
zens." These  provisions  are  a  direct  result  of  the  resolutions  of  the 
Pan-American  Conferences  of  1889  and  1901,  which  were  subscribed 
by  almost  all  the  states  represented  except  the  United  States.  Ar- 
ticles 1  and  2  of  the  convention  on  the  rights  of  aliens  adopted  at  the 
Second  Pan-American  Conference  at  Mexico,  1901-1902,  have  been 
reincorporated  into  the  constitutions  and  laws  of  the  majority  of  the 
Latin-American  republics.    This  convention  provides: 

(1)  "Aliens  shall  enjoy  all  civil  rights  pertaining  to  citizens  and  may 
make  use  thereof  in  the  substance,  form  or  procedure  and  in  the  re- 
courses which  result  therefrom,  under  exactly  the  same  terms  as  the 
said  citizens,  except  as  may  be  otherwise  provided  by  the  constitutions 
of  each  country." 

The  reservation  embodied  in  the  words  "except  as  may  be  otherwise 
provided  by  the  constitution  of  each  country"  leaves  the  effect  of  the 
convention  in  some  doubt. 
Article  2  provides: 

"The  states  do  not  owe  to,  nor  recognize  in  favor  of  foreigners  any 
obligations  or  responsibilities  other  than  those  established  by  their 
constitutions  and  laws  in  favor  of  their  citizens."  ' 

'  Sen.  Doc.  330,  .57th  Cong.,  1st  .sess.,  p.  228.  One  American  writer,  Edgington, 
in  considering  the  effect  of  placing  foreigners  on  an  equality  with  oitizims,  states 
rather  sarcastically  that  this  gives  the  foreigner  the  inestimable  privilege  of  being 
robbed  on  the  same  lamentable  terms  as  the  citizen.  See  also  Alvarez,  op.  cit.,  234- 
2:i.5;  Calvo,  op.  cit.,  VI,  §  2.56,  p.  331;  For.  Rel.,  1893,  pp.  731-7.34. 

The  Third  Pan-American  Conference  at  Rio  de  Janeiro,  1006,  did  not  renew  the 
c  invention  on  the  rights  of  aliens  adopted  at  the  Mexican  Conference  in  1901,  but 


SUBTLE    LEGISLATIVE    MEASURES   TO   AVOID    INTERPOSITION         845 

Mr.  Trescott,  the  delegate  of  the  Ignited  States  at  the  Conference 
of  1889,  foresaw  that  such  a  provision  was  an  attempt  to  forestall 
diplomatic  intervention  by  "an  internal  legislative  limitation  of  lia- 
bility," a  proposition  which  the  United  States  government  has  never 
admitted  as  having  force  in  determining  the  responsibility  of  states 
to  one  another.^  This  attempted  limitation  is,  of  course,  merely  sup- 
plementary to  a  general  provision  in  every  state  system  in  Latin- 
America  that  foreigners  must  submit  themselves  for  all  purposes  to 
the  local  law.^ 

The  United  States  has  never  receded  from  its  position  that  a  citi- 
zen's right  to  ask  the  protection  of  his  government  does  not  depend 
upon  the  local  law,  but  upon  the  law  of  his  own  country,  and  that 
the  limits  of  diplomatic  protection  are  fixed  by  international  law  with- 
out possibility  of  restriction  by  municipal  legislation.^ 

seems  to  have  left  the  matter  to  be  governed  by  the  principles  of  international  law. 
Alvarez,  op.  cit.,  235. 

The  following  constitutions,  among  others,  embody  this  provision: 

Colombia,  Art.  11,  Rodriguez,  II,  321;  Costa  Rica,  Art.  12,  Rodriguez,  I,  328; 
Ecuador,  Art.  37,  Rodriguez,  II,  283;  Honduras,  Art.  11,  Rodriguez,  I,  362;  Nicar- 
agua, Arts.  7-8,  Rodriguez,  I,  301;  Panama,  Art.  9,  Rodriguez,  I,  394;  Paraguay, 
Art.  33,  Rodriguez,  II,  388. 

The  following  laws  contain  a  similar  provision: 

Guatemala,  Law  of  Feb.  21,  1894,  Art.  47,  86  State  Papers,  1281  ei  seq.;  Mexico, 
Law  of  May  28,  1886,  Art.  30,  For.  Rel.,  1895,  II,  1012;  Legislacion  mexicana.  Vol.  17, 
p.  474  et  seq.;  Venezuela,  decree  of  Nov.  13,  1912,  8  A.  J.  I.  L.  (1914),  Suppl.  174-175. 

1  Report  on  the  Uniform  Code  of  International  Law  at  the  First  International 
American  Conference,  Sen.  Ex.  Doc,  51st  Cong.,  1st  sess.,  pp.  28,  29;  Mr.  Fish, 
Secretary  of  State,  to  Mr.  Foster,  Minister  to  ^Mexico,  July  15,  1875,  Moore's  Dig. 
VI,  310.  See  Mr.  Bayard's  statement  with  reference  to  the  Venezuelan  law  of  Febru- 
ary 14,  1873,  Moore's  Dig.  VI,  745;  see  also  For.  Rel.,  1887,  p.  99;  1888,  p.  491;  1893, 
pp.  731-732. 

2  Salvador,  Constitution,  Art.  45,  Rodriguez,  I,  268;  Cuba,  Constitution,  Art.  10, 
Rodriguez,  II,  115;  Salvador,  law  of  September  29,  1886,  Art.  38,  77  State  Papers, 
116;  Colombia,  law  of  November  28,  1888,  Art.  9,  79  State  Papers,  167  et  seq. 

3  Mr.  Bayard  to  Mr.  Hall,  Feb.  16,  1887,  For.  Rel.,  1887,  p.  99;  Mr.  Bayard  to  Mr. 
King,  Oct.  13,  1886,  For.  Rel.,  1887,  p.  246;  Mr.  Partridge  to  Mr.  Gresham,  For.  Rel., 
1893,  p.  731;  Mr.  Frelinghuysen  to  Mr.  Soteldo,  April  4,  1884,  For.  Rel.,  1884,  p.  599, 
Moore's  Dig.  VI,  321;  Mr.  Olney,  Sec'y  of  State,  to  Mr.  Dupuy  de  I-6me,  Feb.  17, 
1896  and  Mr.  Rockhill,  Act'g  Sec'y  of  State,  to  same,  July  25,  1896,  For.  Rel.,  1896, 
pp.  677  and  680;  Miliani  (Italy)  v.  Venezuela,  Feb.  13,  ilay  7,  1903,  Ralston,  756. 
See  the  series  of  quotations  and  extracts  collected  by  Plumley,  Umpire,  in  Aroa 


840  THE    DITLOMATIC    TROTECTION    OF    CITIZENS   ABROAD 

Some  states  have  in  one  portion  of  their  laws  governing  foreigners/ 
provided  that  the  alien  has  the  right  "to  appeal  to  the  protection 
of  his  country  by  diplomatic  means  according  to  the  precepts  estab- 
lished by  the  constitution."  This  apparently  liberal  provision  is  sub- 
sequently modified  in  the  same  law  by  a  clause  that  such  diplomatic 
intervention  is  only  possible  in  cases  of  denial  of  justice  after  the  or- 
dinary means  provided  by  the  laws  have  been  exhausted,  and  then 
follows  a  special  legislative  definition  of  the  term  "denial  of  justice" 
in  which  it  is  provided  that  a  "denial  of  justice"  is  understood  when 
the  "judicial  authority  refuses  to  make  a  formal  declaration  concern- 
ing the  main  issue  or  any  of  the  incidents  in  the  case,"  and  that  a 
"denial  of  justice"  cannot  be  alleged  no  matter  how  iniquitous  or 
contrary  to  law  the  decision  may  be.  In  the  law  of  Honduras  of  April  10, 
1895,^  the  clause  reads: 

"Aliens  may  not  have  recourse  to  diplomatic  intervention  except  in 
case  of  denial  of  justice,  and  after  having  in  vain  appealed  to  the  ordi- 
nary means  provided  by  the  laws  of  the  Republic."     (Art.  34.) 

"Denial  of  justice  is  understood  when  the  judicial  authority  refuses 
to  make  a  formal  declaration  concerning  the  principal  matter  or  any  of 
the  incidents  of  the  case.  .  .  .  Consequently,  by  the  mere  act  of  the 
judge  giving  a  decision  or  sentence  in  any  sense,  denial  of  justice  cannot 
be  asserted,  although  it  may  be  said  that  the  decision  is  iniquitous  or 
contrary  to  law."    (Art.  35). 

In  other  words,  if  a  decision  has  been  made  in  the  case,  "denial  of 
justice"  can  no  longer  be  alleged.  When  read  together  with  the  pro- 
vision of  obedience  to  local  laws,  the  constitutional  prohibition  against 
making  a  treaty  which  would  under  any  circumstances  guarantee 
the  right  of  aliens  to  appeal  to  their  governments  for  protection,  the 
provision  that  the  alien  has  no  other  recourses  than  those  which  the 
law  gives  to  the  citizen,  and,  finally,  the  legislative  definition  of  a 
"denial  of  justice"  which  makes  a  decision  apparently  just  no  matter 

Mines  (Gt.  Brit.)  v.  Venezuela,  Ralston,  378,  380.  The  German  government  takes 
a  similar  position,  Ralston,  Appendix,  p.  969,  Asuntos  internacionales. 

»  Honduras,  decree  of  April  10,  1895,  Art.  27,  87  State  Papers,  703-704;  Salvador, 
law  of  September  29,  1886,  Art.  29,  77  State  Papers,  11&-118;  Guatemala,  decree  of 
February  21,  1894,  Art.  42,  86  State  Papers,  1281  et  seq. 

«  87  State  Papers,  70J>-706.  See  also  Salvador,  law  of  September  29,  1886,  Arts.  39 
and  40, 77  State  Papers,  116-118,  For.  Rel.,  1887,  p.  69;  Guatemala,  decree  cf  Febru- 
ary 21,  1894,  Art.  42,  86  State  Papers,  1281  et  seq. 


6LbTLE    LEGISLATIVE    MEASURES   TO   AVOID    INTERPOSITION         847 

how  iniquitous  it  may  be,  it  would  seem  that  such  a  legislative  limita- 
tion completely  defeats  the  ends  of  justice. 

Secretary  Bayard,  in  commenting  on  these  provisions  of  the  law 
of  Salvador,  stated  that  the  denial  to  the  foreigner  of  the  right  to 
appeal  to  his  government  necessarily  implies  the  denial  in  the  particu- 
lar case  of  his  government's  right  to  intervene,  and  as  this  denial  is 
based  upon  the  decision  of  a  tribunal  of  Salvador,  the  judgments  of 
this  tribunal  are  made  internationally  binding  as  to  all  questions  of 
municipal  or  of  international  law  coming  before  them.  He  added 
that  while  "it  may  be  admitted  as  a  general  rule  of  international  law 
that  a  denial  of  justice  is  proper  ground  of  diplomatic  intervention, 
this  is  merely  the  statement  of  a  principle  and  leaves  the  question 
in  each  case  whether  there  has  been  such  denial  to  be  determined  by 
the  application  of  the  rules  of  international  law."  ^ 

It  is  hardly  to  be  supposed  that  any  foreign  state,  even  among  those 
which  have  concluded  treaties  with  Latin-American  republics  pro- 
viding for  a  renunciation  of  diplomatic  interposition  in  all  cases  ex- 
cept denial  of  justice,  would  consider  itself  bound  by  a  municipal 
legislative  interpretation  of  the  term  "denial  of  justice."  Great  Britain 
and  the  United  States,  with  rare  exceptions,^  have  not  only  declined 
to  conclude  treaties  renouncing  diplomatic  interposition,  but  have 
expressly  protested  against  any  articles  of  local  law  which  purport 
to  limit  or  restrict  the  diplomatic  interposition  of  the  government.^ 

1  Mr.  Bayard,  Secretary  of  State,  to  Mr.  Hall,  November  29,  1886,  For.  Rel, 
1887,  pp.  80-81. 

2  Treaty  between  United  States  and  Peru,  September  6,  1870,  Art.  37,  Pradier- 
Fod^re,  op.  cit.,  Ill,  236;  Martens'  Recueil,  Vol,  51,  p.  107.  See  also  treaty  between 
Great  Britain  and  Bolivia,  .\ug.  1,  1911,  art.  10,  Treaty  series,  1912,  223. 

'  Great  Britain  and  the  United  States,  while  upholding  the  duty  of  their  injured 
citizen  abroad  to  appeal  to  the  local  courts  for  redress,  have  never  hesitated  to  in- 
terpose in  his  behalf  when  they  deemed  a  foreign  court  in  any  way  unworthy  of 
confidence.  Lord  Palmerston  in  the  House  of  Commons,  June  25,  1850;  .\kerman, 
Attorney-General,  1871,  13  Op.  Atty.  Gen.  547,  cited  in  Moore's  Dig.  VI,  681-682. 

In  some  cases  of  oppression  resort  to  the  judicial  remedy  may  be  dispensed  with, 
diplomatic  interposition  being  immediate.    Supra,  p.  819. 

For  attitude  of  Germany,  see  For.  Rel.,  1902,  p.  844,  Moore's  Dig.  VI,  300. 

For  United  States  protest,  see  For.  Rel.,  1887,  pp.  78,  99,  Moore's  Dig.  VI,  267,  270, 
And  for  Great  Britain's  protest,  December  7,  1887  and  .\pril  17,  1888,  against  ths 
law  of  Salv-xdor  of  Sept.  29,  1886,  see  77  State  Papers,  116. 


848  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

Another  general  provision  by  which  it  is  sought  to  limit  state  re- 
sponsibility stipulates  that  the  pubHc  official  causing  the  injury  shall 
be  personally  sued  and  the  state  cannot  be  made  a  party  to  the  suit. 
The  provision  in  the  constitution  of  Haiti  reads  as  follows : 

"The  injured  parties,  however,  shall  have  the  right  if  they  choose 
to  prosecute  before  the  courts  according  to  law  the  individuals  recog- 
nized as  authors  of  the  wrongs  perpetrated  and  seek  in  this  way  the 
proper  legal  reparation."  ^ 

How  limited  the  redress  of  the  individual  under  such  circumstances 
must  be  is  apparent  on  its  face. 

Perhaps  the  most  drastic  attempt  to  limit  diplomatic  interposition 
was  incorporated  into  the  decree  of  Ecuador  of  July  17,  1888,^  in  which 
the  nation  was  reUeved  from  responsibility  to  aliens  for  all  damages 
resulting  from  war,  civil  or  international,  from  all  military  operations 
or  measures  adopted  for  the  restoration  of  public  order,  and  from  "meas- 
ures adopted  by  the  government  towards  natives  or  foreigners  involving 
their  arrest,  banishment,  or  imprisonment  ,  .  .  whenever  the  exi- 
gencies of  public  order  .  .  .  require  such  action."  In  this  case  a 
collective  note  was  addressed  by  the  diplomatic  body  at  Quito  to 
the  Minister  of  Foreign  Affairs  in  which  they  stated  that  they  would 
act  on  the  principle  that  the  internal  legislation  of  a  state  cannot  alter 
international  law  to  the  prejudice  of  the  subjects  of  other  nations.^ 
The  United  States  in  a  series  of  notes  declared  that  they  could  "  never 
acquiesce  in  any  attempt  on  the  part  of  [Ecuador]  to  use  such  a  statute 
as  an  answer  to  a  claim  which  this  government  had  presented."  ^ 

Some  states  have  sought  to  avoid  diplomatic  interposition  by  es- 

1  Constitution  of  Haiti,  October  9,  1889,  Art.  185,  Rodriguez,  II,  85.  See  also 
Ecuador,  constitution.  Art.  39,  Rodriguez,  II,  284;  Salvador,  constitution.  Art.  38, 
Rodriguez,  I,  294;  Bolivia,  constitution,  Art.  Ill,  Rodriguez,  II,  441-442;  Venezuela, 
decree  of  February  14,  1873,  Art.  3.  See  also  Tchernoff,  Protection  des  nationaux, 
1899,  p.  292;  Calvo,  op.  cit.,  §  1263.  The  Venezuelan  decree  of  Nov.  13,  1912  grants 
a  right  to  sue  the  officer  and  a  more  limited  right  to  sue  the  state.  8  A.  J.  I.  L.  (1914), 
Suppl.  174.  The  legislative  decree  of  Salvador,  May  10,  1910,  art.  1,  limits  ttie  re- 
sponsibility of  the  state  for  the  acts  of  its  officers. 

2  Recopilaci6n  de  leyes  de  Ecuador  (Noboa),  Vol,  2,  pp.  124-125;  79  State  Papers, 
166. 

»  79  State  Papers,  166-167;  Alvarez,   op.  dt.,  121. 
♦  For.  Rel.,  1881,  pt.  1,  pp.  490-492. 


SUBTLE    LEGISLATIVE    MEASURES   TO   AVOID    INTERPOSITION         849 

tablishing  a  court  or  board  of  commissioners  which  was  to  have  juris- 
diction of  claims  against  the  state  presented  both  by  subjects  and 
by  foreigners.  The  harsh  conditions  which  have  at  times  accompanied 
the  presentation  of  a  claim  to  such  a  board  might  easily  involve  more 
danger  and  loss  to  the  individual  bringing  the  claim  than  if  he  had 
never  made  it  known.  Thus,  the  Venezuelan  decree  of  February  14, 
1873  (republished  January  24,  1901),  provides  (Arts.  1  and  2)  that 
persons  preferring  claims  against  the  nation,  whether  natives  or  foi-- 
eigners,  on  account  of  damages,  injuries  or  seizures,  bj-  national  cr 
state  officers,  either  in  civil  or  international  war,  or  in  time  of  peace, 
shall  make  a  formal  application  to  the  high  federal  court.  In  the 
trial  of  such  cases  the  admission  of  oral  testimony  is  forbidden  unless 
the  officer  who  caused  the  damage  or  made  the  seizure  refuses  to  give 
written  evidence,  or  unless  it  is  impossible  to  obtain  such  e\idence.  ,  .  . 
It  is  further  provided  (Art.  8)  that  any  claimant  who  shall  manifestly 
appear  to  have  exaggerated  the  amount  of  the  damages  claimed  shall 
forfeit  any  right  that  he  may  have,  and  shall  be  liable  to  a  fine  of  from 
500  to  3,000  venezolanos,  or  to  imprisonment  for  from  three  to  twelve 
months,  and  that  if  the  claim  shall  appear  to  be  wholly  fraudulent, 
the  guilty  party  shall  be  liable  to  a  fine  of  from  1,000  to  5,000  venezo- 
lanos, or  to  imprisonment  from  six  to  twenty-four  months.  The  decree 
also  provides  (Art.  9)  that  ''in  no  case  can  it  be  claimed  that  the  nation 
or  the  states  are  bound  to  grant  indemnity  for  damages,  injuries, 
or  seizures  that  have  not  been  executed  by  legally  competent  author- 
ities, acting  in  their  public  capacity."  ^  The  Venezuelan  law  of  April  16, 
1903,  compels  the  alien  to  subscribe  a  declaration  binding  himself 
to  abide  by  the  provisions  of  the  decree  of  1873,  under  penalty  of  ex- 
pulsion.^    Secretary   of  State   Frelinghuysen,   in   the   correspondence 

*  Venezuela,  decree  of  February  14,  1873,  Recopilacion  de  leyes,  Vol.  5,  1870-73, 
pp.  241-243,  74  State  Papers,  1065-67;  Moore's  Dig.  VI,  318-319;  Aroa  Mines 
(Gt.  Brit.)  V.  Venezuela,  February  13,  1903,  Ralston,  350  et  seq.  Art.  15  of  the 
Constitution  of  1903,  renewed  by  Art.  21  of  the  Constitution  of  1909  denies  any 
rightful  claim  of  indemnity  from  the  government  if  the  officers  acted  in  their 
official  capacity.  Between  the  law  of  1873  and  the  Constitution,  the  margin  of 
state  liabilitj'  would  seem  to  be  exceedingly  narrow.  The  effect  of  the  decree  of 
Nov.  13,  1912  is  hardly  to  enlarge  state  responsibility. 

2  96  State  Papers,  647  et  seq.  See  also  2  R.  G.  D.  I.  P.  (1895),  344  et  seq.,  and 
article  by  Daguin,  "Les  etrangers  au  Venezuela,"  1  R.  D.  I.  priv6  (1905),  277  et  seq 


850  THE   DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

which  took  place  with  the  Venezuelan  Minister  as  to  the  application 
of  this  decree  to  a  certain  claim,  stated : 

"A  foreigner's  right  to  ask  and  receive  the  protection  of  his  govern- 
ment does  not  depend  upon  the  local  law,  but  upon  the  law  of  his  own 
country.  His  citizenship  goes  with  him  into  whatever  country  he  may 
visit,  and  the  duty  of  his  government  to  protect  him  so  long  as  he  does 
nothing  to  forfeit  his  citizenship  accompanies  him  everywhere.  This 
duty  his  government  must  discharge,  and  it  could  not,  if  it  would,  be 
relieved  therefrom  by  the  fact  that  the  municipal  law  of  the  country 
where  its  citizen  may  happen  to  be  has  seen  fit  to  provide  under  what 
circumstances  he  may  be  permitted  to  appear  before  the  authorities  of 
that  country.  Such  a  law  cannot  control  the  action  or  duty  of  his  gov- 
ernment, for  governments  are  bound  among  themselves  only  by  treaties 
or  by  the  recognized  law  of  nations,  and  there  is  nothing  in  the  existing 
treaties  between  the  two  countries  or  in  the  law  of  nations  which  rec- 
ognizes as  pertaining  to  Venezuela  the  right  by  the  enactment  of  a 
municipal  law  to  say  how,  or  where,  or  under  what  circumstances  the 
government  of  the  United  States  may  or  may  not  ask  justice  in  behalf 
of  one  of  its  own  citizens."  ^ 

Seijas,  the  noted  publicist,  and  for  a  long  time  Minister  of  Foreign 
Affairs  of  Venezuela,  explains  this  law  as  due  to  the  desperation  into 
which  Venezuela  had  been  driven  by  the  large  number  of  exaggerated 
foreign  claims  which  had  been  successfully  pressed  against  her  be- 
cause Venezuela  was  too  weak  to  resist  the  armed  forces  of  European 
powers.  It  is  to  be  feared  that  the  enactment  of  such  harsh  laws  are 
more  of  a  detriment  than  a  help  to  these  countries  in  securing  the  de- 
sired relief. 

The  Latin-American  countries  have  occasionally,  however,  estab- 
lished courts  of  claims  to  consider  claims  arising  out  of  injuries  in- 
flicted upon  foreigners,  which  are  apparently  free  from  these  hazard- 
ous limitations.^     Even  these  attempts  to  assume  final  jurisdiction 

'  Mr.  Frelinghuysen,  Sec'y  of  State,  to  Mr.  Soteldo,  Venezuelan  Min.,  Apr.  4,  1884, 
For.  Rel.,  1884,  p.  .599,  Moore's  Dig.  VI,  321. 

*  Thus,  Colombia,  by  a  law  of  August  .31  and  October  11,  1886,  77  State  Papers, 
810,  as  amended  February  1.5,  1887,  78  State  Papers,  53,  provided  that  loans,  sup- 
plies, expropriations  or  other  losses  even  when  under  circumstances  caused  by  rebels 
shall  be  compensated  for.  See  decree  of  Colombia,  July  30,  1878,  69  State  Papers, 
376;  Guatemala,  law  of  February  21,  1894,  Art.  81,  86  State  Papers,  1281  et  seq.; 
Colombia,  law  of  October  17,  1903,  98  State  Papers,  839. 

As   in   most  systems  derived   from  Roman  law,  the  state  generally,  in  Latin- 


SUBTLE    LEGISLATIVE    MEASURES   TO   AVOID    INTERPOSITION         851 

over  and  satisfy  the  claims  of  foreigners  arising  out  of  injuries  received, 
have  not  been  acceded  to  in  all  cases.  Thus,  Secretary  of  State  Bayard, 
referring  to  the  Colombian  law  of  1886,  establishing  a  board  of  claims 
to  consider  the  claims  of  foreigners  arising  out  of  the  recent  rebellion, 
stated : 

"It  is  a  settled  principle  of  international  law  that  a  sovereign  cannot 
J)e  permitted  to  set  up  one  of  his  own  municipal  laws  as  a  bar  to  a  claim 
by  a  foreign  sovereign  for  a  wrong  done  to  the  latter's  subjects;  and 
you  are  consequently^  to  take  the  ground  in  all  discussions  with  the 
( lovernment  of  Colombia  that  the  statute  adopted  by  Colombia  on  the 
31st  of  August,  1886,  is  regaixled  by  the  government  of  the  United  States 
as  in  no  way  whatever  qualif^ying  or  limiting  the  obligations  of  Colombia 
to  the  United  States  for  injuries  inflicted  on  citizens  of  the  United  States 
when  in  Colombia."  ^ 

It  is  sometimes  provided  that  the  bringing  of  a  claim  which  would 
prejudice  the  nation  or  scny  recourse  to  diplomatic  protection  involves 
the  expulsion  of  the  foreigner.^ 

Other  attempts  to  secure  jurisdiction  over  the  foreigner  take  the 
.'orm  of  ascribing  local  citizenship  to  him  or  depriving  him  of  foreign 
nationality  on  the  performance  of  or  omission  to  perform  certain  acts. 
This  might  be  considered  an  easy  form  of  naturalization,  but  whereas 
citizenship  is  usually  regarded  as  a  benefit,  it  must  in  these  cases  be 
considered  a  penalty,   inasmuch  as  it  forfeits  the  foreigner's  rights 

America,  can  be  sued.  It  is  expressly  provided  for  in  the  following  constitutions  and 
laws : 

Argentine,  constitution,  Art.  100,  Rodriguez,  I,  127-128;  Brazil,  constitution,  Art. 
CO,  ibid.  I,  155;  Colombia,  constitution,  Art.  151,  ibid.  II,  355;  Costa  Rica, 
constitution.  Art.  46,  ibid.  I,  332;  Venezuela,  constitution,  Art.  14,  ibid.  I,  225; 
Brazil,  law  of  November  20,  1894,  Collec^ao  das  leis,  1894,  I,  16  et  seq.;  Colombia, 
law  of  August  31,  1886,  Arts.  1,  2,  77  State  Papers,  807;  Venezuela,  law  of  April  16, 
1903,  Art.  16,  96  State  Papers,  647  et  seq.;  Executive  decree  of  Nov.  13,  1912, 
8  A.  J.  I.  L.  (1914),  Suppl.  174;  Guatemala,  law  of  February  21,  1894,  Art.  81,  86 
State  Papers,  1286  et  seq. 

The  Supreme  Court  is  usually  given  jurisdiction  of  suits  in  which  the  government 
is  a  party. 

'  Mr.  Bayard,  Secretary  of  State,  to  Mr.  King,  October  13,  1886,  For.  Rel.,  1887, 
p.  246. 

^Nicaragua,  constitution.  Art.  11,  Rodriguez,  I,  302;  Honduras,  constitution, 
Art.  15,  ibid.  I,  362;  Honduras,  law  of  April  10,  1895,  Art.  37,  87  State  Papers,  707; 
Alvarez,  op.  cit.,  120. 


852  THE    DIPLOMATIC    PROTECTION   OF   CITIZENS   ABROAD 

as  a  foreign  citizen  and  subjects  him  to  all  the  conditions  to  which 
the  native  citizen  must  submit.  Thus,  Brazil  provided,  in  1889,  that 
all  aliens  who  within  a  certain  period  failed  to  register  their  foreign 
nationality  before  certain  administrative  boards  would  lose  their 
right  of  alienage.^  Similarly,  the  laws  of  certain  states  provide  that 
foreigners  who  enter  the  public  service  and  accept  a  salary,  thereby 
become  citizens." 

It  is  generally  provided  that  foreigners  who  take  part  in  the  domestic 
struggles  of  the  country  remain  subject,  as  are  citizens,  to  the  conse- 
quences of  their  conduct  in  conformity  with  the  local  law.^  A  par- 
ticipation in  the  political  affairs  of  the  country  of  residence  is  sometimes 
penalized  with  serious  consequences  for  the  foreigner,  at  least  accord- 
ing to  municipal  legislation.  The  law  of  Venezuela  of  April  11  (16), 
1903,  makes  it  clear  that  alienage  is  regarded  as  a  substantial  benefit 
to  the  individual,  and  that  means  are  sought  to  bring  the  rights  of 
the  alien  down  to  the  precarious  level  of  those  of  the  citizen.  Art.  6 
of  the  law  of  1903  provides: 

"Foreigners  domiciled  or  in  transit  must  not  mix  in  the  political 
affairs  of  the  Republic  nor  in  anything  relating  to  said  political  affairs. 
To  this  end  they  cannot: 

"1.  Form  a  part  of  political  societies. 

"  2.  Edit  political  newspapers  or  write  about  the  interior  or  exterior 
policies  of  the  country  in  any  newspaper. 

"  3.  Fill  public  office  or  employment. 

^  Brazil,  constitution,  Art.  69,  reincorporating  the  decree  of  December  14,  1889, 
Rodrig;uez,  I,  158;  see  also  on  forced  naturalization,  Moore's  Dig.  Ill,  §  378,  and 
supra,  pp.  535,  683,  712. 

2  Salvador,  constitution.  Art.  48,  Rodriguez,  I,  268;  Ecuador,  law  of  1888,  Art.  5, 
First  Pan-American  Conference,  Report  on  Uniform  Code  of  International  Law, 
Sen.  Ex.  Doc.  183,  51st  Cong.,  1st  sess.,  p.  28,  and  U.  S.  protest  thereon.  See  also 
supra,  pp.  712,  813. 

'  Venezuela,  decree  of  May  18,  1869,  59  State  Papers,  1304;  Constitution  of  1904, 
art.  14.  The  American  republics  generally  reserve  the  right  of  treating  aliens  who 
take  part  in  their  civil  struggles  as  their  own  nationals.  See  treaties  of  Germany 
and  Colombia,  July  23,  1892,  Art.  20,  Martens,  Vol.  69,  p.  842;  Spain  and  Honduras, 
November  17,  1894,  Art.  3,  Olivart's  Coleccion,  Vol.  II,  p.  156;  Spain  and  Colombia, 
April  28,  1894,  Art.  4,  Olivart,  ibid..  Vol.  II,  p.  63;  Italy  and  Colombia,  October  27, 
1892,  Art.  5,  Martens,  Vol.  72,  p.  310.  See  also  debate  in  German  Reichstag,  Janu- 
ary 21,  1894,  cited  in  R.  G.  D.  I.  P.  (1895),  343-344.  In  the  treaties  concluded  among 
themselves,  the  Latin-American  countries  usually  incorporate  a  provision  to  this 
effect.    Tchernoff,  op.  cit.,  210. 


SUBTLE    LEGISLATIVE    MEASURES    TO   AVOID    INTERPOSITION         853 

"  4.  Take  arms  in  the  domestic  contentions  of  the  Republic. 
"  5.  Deliver  speeches  which  in  any  way  relate  to  the  politics  of  the 
country." 

Article  7  provides : 

"Domiciled  foreigners  who  violate  any  of  the  provisions  established 
in  article  6  lose  their  character  of  foreigners  and  become  ipso  facto  sub- 
jected to  the  responsibilities,  burdens,  and  obligations  which  might  be 
occasioned  to  natives  through  intestine  political  contingency."  ^ 

Foreign  corporations  doing  business  in  the  state  are  sometimes 
regarded  as  national  corporations,-  especially  where  they  are  the 
grantees  of  a  concession-contract  from  the  government.  Turkey, 
by  a  law  of  January  10,  1888,  endeavored  to  attach  to  its  permission 
to  foreigners  to  set  up  printing  presses  the  obligation  of  renouncing 
the  immunities  and  privileges  of  foreigners,  and  a  subjection  to  the 
same  law  as  Turkish  nationals.  The  United  States  adhered  to  its 
policy  of  refusing  to  consider  its  right  of  protection  impaired  in  any 
way  by  such  a  municipal  law." 

The  holding  of  real  property  sometimes  has  as  its  consequence  local 
citizenship,  or,  at  least,  with  respect  to  such  property,  the  obligations 
of  citizenship.  Thus,  the  law  of  Haiti  containing  this  provision  was 
advanced  as  a  defense  to  a  claim  for  the  injury  of  property  in  Haiti 
owned  by  an  American  citizen.  The  arbitrators  in  the  case  decided 
that  the  provision  could  only  be  given  effect  where  there  had  been 
a  legal  proceeding  to  dispossess  the  American  citizen  under  the  law, 
and  in  the  absence  of  such  proceeding,  mere  possession  was  considered 
to  entitle  him  to  an  indemnity  for  injuries  to  his  property.^  The  pro- 
vision in  the  constitution  of  Mexico  of  1857,  by  which  aliens  holding 

1  Senate  Doc.  413,  60th  Cong.,  let  sess.,  p.  16. 

2  Colombia,  constitution.  Art.  14,  Rodriguez,  II,  321;  Venezuela,  constitution, 
art.  124,  Rodriguez,  I,  231;  Salvador,  law  of  September  29,  1886,  Art.  5,  77  State 
Papers,  116. 

The  statutes  often  provide  that  concession  contracts  made  with  foreigners  or 
foreign  corporations  shall  make  the  concessionary  a  citizen  for  all  purposes  of  the 
contract.  See  also.  North  and  South  American  Construction  Co.  (U.  S.)  v.  Chile, 
Aug.  7,  1892,  Moore's  .\rb.  2318-2322. 

*  Mr.  Bayard,  Sec'y  of  State,  to  Mr.  Strauss,  Minister  to  Turkey,  June  28,  1888, 
For.  R'^l.,  1888,  II,  1599. 

*  Williams  (U.  S.)  v.  Haiti,  Convention  of  1885,  Moore's  Arb.  1859.  See.  For.  Rel., 
1885,  525,  540. 


854  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

real  estate  became  Mexican  citizens  unless  they  manifested  an  inten- 
tion to  retain  their  foreign  citizenship,  came  for  consideration  before 
the  Commission  of  July  4,  1868,  in  which  Umpires  Lieber  and  Thornton 
both  held  that  even  though  there  was  no  manifestation  of  an  intent 
to  retain  their  original  citizenship,  nevertheless,  Mexican  citizenship 
could  not  be  imposed  upon  foreigners  by  the  law,  as  the  provision 
was  permissive  and  not  obligatory;  likewise,  that  it  had  no  retroactive 
effect  upon  an  alien  acquiring  real  estate  prior  to  the  enactment  of 
I  he  constitutional  provision.^ 

§  394.  Matriculation  as  Foreigner. 

Several  countries,  such  as  Mexico,  Salvador,  Spain  (in  Cuba),  Hon- 
duras, Guatemala,  Venezuela  and  Peru,^  have  at  various  times  by  their 
municipal  law  required  foreigners  to  matriculate  or  register  their 
alienage  in  a  certain  book  kept  for  that  purpose,  as  a  condition  prece- 
dent to  the  assertion  of  their  rights  as  foreigners.  As  provided  for 
by  the  Salvadorean  law  of  September  29,  1886,  Arts.  21-28,  these  rights 
of  foreigners  are : 

(1)  To  appeal  to  the  treaties  and  conventions  existing  between 
Salvador  and  their  respective  governments. 

(2)  To  have  recourse  to  the  protection  of  their  sovereign  through 
the  medium  of  diplomatic  representation. 

(3)  The  benefit  of  reciprocity. 

'  Anderson  and  Thompson  ( U.  S.)  v.  Mexico,  July  4, 1868,  Moore's  Arb.  2482;  Mor- 
ton (U.  S.)  V.  Mexico,  July  4,  18G8,  Moore's  Arb.  2477-2479.    See  alsc  supra,  p.  492. 

2  Mexico,  decree  of  March  16,  1861,  Legislaci6n  mexicana,  Vol.  9,  p.  123;  deciee  of 
December  6,  1866,  ibid.,  Vol.  9,  p.  749;  decree  of  July  28,  1871,  ibid.,  Vol.  11,  p.  540; 
decree  of  April  6,  1872,  ibid..  Vol.  12,  p.  173.  These  decrees  were  repealed  by  the 
law  of  May  28,  1886,  ibid.,  Vol.  17,  p.  474,  by  which  optional  registration  was  sub- 
stituted for  compulsory  matriculation.  See  Moore's  Dig.  VI,  pp.  309-314,  and 
authorities  there  cited. 

Salvador,  law  of  September  29,  1886,  Arts.  21-28,  77  State  Papers,  116-122, 
Moore's  Dig.  VI,  314-315,  III,  791-793;  Spain  in  Cuba,  decree  of  October  3, 1895,  Re- 
vista  de  Legislacidn,  Boletin,  v.  100  (1895),  pp.  630-640,  Moore's  Dig.  VI,  316-317, 
III,  794-795;  Honduras,  decree  of  April  10,  1895,  Arts.  23-26,  87  State  Papers,  703- 
704;  Ley  de  extranjeria,  Feb.  8,  1906,  Art.  25,  For.  Rel.,  1909,  pp.  361-363;  Guate- 
mala, decree  of  February  21,  1894,  Arts.  35-41,  86  State  Papers,  1281  et  seq.,  Vene- 
zuela, law  of  April  16,  1903,  Art.  12,  96  State  Papers,  647  et  seq.;  rem,  decree  ol 
March  3,  1887,  Moore's  Dig.  IV,  26. 


MATRICULATION   AS    FOREIGNER  855 

The  Cuban  regulations  of  1895  and  the  Mexican  law  of  1861  similarly 
made  matriculation  a  condition  precedent  to  the  assertion  of  rights 
as  foreigners,  either  as  granted  by  municipal  law  or  by  treaty.  The 
omission  so  to  matriculate,  therefore,  would  operate  as  an  estoppel 
or  deprivation  of  their  rights  as  citizens  of  a  foreign  country.  Mexico 
even  required  in  its  law  of  1861  (Art.  8)  that  "tribunals  and  judges, 
before  entering  any  claims  presented  before  them  by  a  foreigner, 
must  first  demand  a  presentation  of  said  certificate,  noting  its  date 
and  number,  and  without  such  presentation  no  such  claimant  shall 
be  heard  in  court  or  out  of  it."  These  countries  contend  that  such 
matriculation  is  a  proof  of  the  alien's  nationality  and  of  his  right  to 
the  special  privileges  and  obligations  embodied  in  the  rights  of  aliens. 
According  to  the  Salvadorean  statute,  unless  a  foreigner  possesses  a 
certificate  of  matriculation  no  authority  or  public  functionary  of  Salva- 
dor is  permitted  to  concede  to  him  any  of  these  rights. 

With  respect  to  these  statutes,  the  United  States  has  taken  the 
view  that  while  this  government  is  disposed  to  admit  the  convenience 
of  registration  as  an  additional  evidence  of  the  rights  of  its  citizens 
to  the  protection  of  the  local  authorities,  and  by  consular  instructions 
has  facilitated  such  registration,  it  has  never  consented  that  the  failure 
to  register  could  deprive  American  citizens  of  their  rights  as  such 
citizens.^  Mr.  Bayard's  interpretation  of  the  Salvadorean  statute 
was  that  "by  making  the  compliance  of  a  foreigner  with  a  municipal 
regulation  a  condition  precedent  to  the  recognition  of  his  national 
character,  the  [foreign]  government  not  only  assumes  to  be  the  sole 
judge  of  his  status,  but  imposes  upon  him  as  a  penalty  of  non-compUance 
a  virtual  loss  of  citizenship."  He  considered  this  to  be  an  attempt 
to  abrogate  the  sovereign  right  of  this  government  toward  its  citizens 
in  foreign  lands,  "to  which  this  government  has  never  given  assent." 

'  Mr.  OIney,  Sec'y  of  State,  to  the  President,  December  7,  1896,  For.  Rel.,  1896, 
p.  Ixxxvii  and  p.  677  et  seq.  (with  reference  to  the  Cuban  statute) ;  Mr.  Fish,  Sec'y  of 
State,  to  Mr.  Foster,  Minister  to  Mexico,  July  15,  1875,  Moore's  Dig.  VI,  310  (with 
reference  to  the  Mexican  statute) ;  Mr.  Bayard,  Sec'y  ot  State,  to  Mr.  Hall,  Novem- 
ber 29,  1886.  For.  Rel.,  1887,  pp.  78-80  (with  reference  to  the  Salvadorean  statute). 

See  also  Moore's  Dig.  VI,  315;  ibid.  Ill,  790  et  seq. 

According  to  a  letter  from  Mr.  Hall  (For.  Rel.,  1887,  p.  Ill)  Salvador,  evidently 
heeding  the  objection  ot  foreign  governments,  took  no  steps  to  carry  out  the  law. 


85t)  THE    DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

France  has  likewise  protested  ^  against  any  limitation,  by  these 
requirements  of  local  legislation,  of  its  right  to  protect  its  citizen. 

The  result  is,  that  while  foreign  governments  will  admit  that  their 
subjects  abroad  must  comply  with  reasonable  local  requirements 
as  to  registration,  the  omission  to  register  or  matriculate  cannot  vitiate 
the  alien's  right  to  diplomatic  protection  by  his  own  government. 

§  395.  Legislative  Limitations  in  Matters  of  Contractual  Claims. 

The  third  class  of  claims,  those  arising  out  of  contracts  between 
aliens  and  the  government,  have  given  rise  to  a  form  of  legislative 
limitation,  according  to  which,  as  a  term  of  the  concession-contract 
itself,  the  alien  renounces  his  right  to  call  upon  his  own  government 
for  diplomatic  protection.  The  provision  is  incorporated  in  the  con- 
stitutions or  laws  of  several  countries,  and  makes  it  incumbent  upon 
the  government  in  granting  a  concession  to  include  in  the  contract 
a  clause  to  the  effect  that  the  foreigner  "renounces  all  right  to  prefer 
a  diplomatic  claim  in  regard  to  rights  and  obligations  derived  from 
the  contract";  or  else  that  "all  doubts  and  disputes"  arising  under 
it  "shall  be  submitted  to  the  local  courts  without  right  to  claim  [the] 
diplomatic  interposition"  of  the  alien's  government.^ 

It  has  already  been  observed  in  the  discussion  of  the  contractual 
renunciation  of  protection,  that  this  form  of  limitation  traces  its  origin 
to  the  doctrines  of  Calvo.  It  has  been  noted  that  foreign  offices  and 
international  tribunals  have  for  the  most  part  declined  to  consider 
the  alien's  government  bound  by  this  form  of  contractual  renuncia- 
tion of  diplomatic  protection. 

§  396.  Conclusions. 

The  fundamental  Latin-American  theory  which  has  been  responsi- 
ble for  the  enactment  of  these  legislative  provisions,  which  to  the 

1  17  Clunet  (1890),  pp.  766-767. 

2  Ecuador,  constitution.  Art.  38,  Rodriguez,  II,  283,  4  R.  G.  D.  I.  P.  (1897),  228. 
See  also  Ecuador,  law  of  August  25,  1892,  Art.  14,  84  State  Papers,  040;  Venezuela, 
constitution.  Art.  124,  Rodriguez,  1,  230;  Colombia,  law  of  November  20,  1888, 
Art.  15,  79  State  Papers,  107  et  seq.,  and  Arts.  42  and  43  of  the  fiscal  code  adopted 
Dec.  2,  1912,  Comp.  Law  Bull.,  1914,  p.  99.  See  also  Colombian  immigration  law 
of  1908,  Arts.  5  and  6,  requiring  immigrants  to  waive  diplomatic  protection.  For. 
Rel.,  1909,  221. 


CONCLUSIONS  857 

European  lawyer  seem  at  least  useless  as  an  amelioration  of  existing 
conditions,  if  not  actually  subversive  of  international  law,  is  expressed 
in  article  125  of  the  Venezuelan  constitution  of  1904: 

"International  law  is  supplementary  to  national  legislation;  but  it  can 
never  be  invoked  against  the  provisions  of  this  constitution  and  the  in- 
dividual rights  which  it  guarantees." 

In  other  words,  whereas  Europe  and  the  United  States  regard  inter- 
national law  in  international  matters  as  superior  to  and  impossible 
of  modification  by  municipal  law,^  the  states  of  Latin- America  main- 
tain the  supremacy  of  their  own  laws  in  international  matters.  There- 
fore, they  assert  that  while  international  law  may  aid,  it  can  never 
dictate,  control  or  determine  any  matter  which  is  in  conflict  with 
its  own  statute  law  and  the  national  interpretation  thereof. 

What  conclusion  may  be  drawn  from  these  attempts  of  the  Latin- 
American  Republics  to  relieve  themselves  from  the  pressure  of  foreign 
claims.  When  we  observe  the  gross  exaggeration  of  claims  before 
international  commissions  and  the  small  proportion  of  awards  made, 
it  will  readily  be  agreed  that  the  Latin-American  republics  have  some 
justification  for  complaint  that  foreign  claims  are  pressed  upon  them 
unjustly.^    The  principles  they  have  adopted  in  their  municipal  legis- 

1  Heathfield  v.  Chilton,  4  Burr.  2016;  Holland,  Studies  in  international  law,  Oxford, 
1898,  p.  195  et  sea.,  and  cases  there  cited;  Plumley,  Umpire,  in  Aroa  Mines  (Gt. 
Brit.)  V.  Venezuela,  Feb.  13,  1903,  Ralston,  376  et  seq. 

^  The  civil  war  claims  of  Great  Britain  against  the  United  States,  settled  by  a 
Mixed  Commission  under  the  Convention  of  1871,  amounted  to  about  $96,000,000; 
less  than  S2,000,000,  or  about  two  per  cent,  was  actually  awarded  to  British  claimants 
(Moore's  Arb.  692-693.) 

The  claims  of  France,  growing  out  of  the  civil  war,  were  settled  under  the  con- 
vention of  Jan.  15,  1880,  and  aggregated  .$35,000,000;  the  awards  amounted  to 
about  $625,000,  less  than  two  per  cent  of  the  amount  demanded.  (Moore's  Arb. 
1133  et  seq.,  1156.) 

The  claims  of  the  citizens  of  the  United  States  v.  Mexico,  under  the  convention 
of  July  4,  1868,  amounted  to  $470,000,000;  about  $4,000,000  was  the  sum  awarded, 
or  less  than  one  per  cent.  The  claims  of  the  citizens  of  Mexico  v.  the  United  States 
amounted  to  $86,000,000;  about  $150,000  was  awarded,  or  about  one-fifth  of  one 
per  cent.    (Moore's  Arb.  1319  et  seq.) 

The  Mixed  Commissions  which  sat  at  Caracas,  Venezuela,  in  1903,  awarded  to 
citizens  of  the  United  States  about  2,300,000  bolivars,  as  against  about  81,400,000 
demanded;  1,975,000  to  Spanish  claimants,  as  against  5,300,000  demanded;  174,000 
to  Swedish  and  Norwegian  claimants  as  against  1,048,000  demanded;  544,000  to 


858  THE   DIPLOMATIC    PROTECTION    OF   CITIZENS   ABROAD 

lation  to  forestall  diplomatic  interposition  are  such  as  the  exploiting 
nations,  for  the  larger  part  the  countries  of  Europe,  admit,  by  common 
international  practice,  in  their  relations  among  themselves.  By  de- 
clining to  admit  their  application  to  the  Latin-American  republics, 
these  countries  in  effect  deny  that  the  states  of  Latin-America  have 
reached  that  stage  in  the  administration  of  civilized  justice  which 
would  warrant  a  complete  and  final  surrender  of  the  rights  of  their 
subjects  to  the  determination  of  the  local  courts.^ 

Experience  has  shown  that  to  a  limited  extent  the  European  nations 
are  correct  in  their  assumption.  The  frequency  of  uprisings  and  revolu- 
tion, due  to  the  instability  of  political  organization  and  lack  of  popular 
confidence  in  authority,  tended,  in  some  of  the  smaller  countries, 
to  bring  about  a  subserviency  of  the  judicial  branch  to  the  executive 
authority  in  power  at  the  moment.  This  condition,  however,  is  rapidly 
disappearing,  and  in  some  of  the  more  progressive  countries  of  Latin- 
Netherlands'  claimants  as  against  5,243,000  demanded;  2,577,000  to  Mexican  claim- 
ants as  against  2,898,000  demanded;  2,976,000  to  Italian  claimants,  as  against 
39,844,000  demanded;  2,092,000  to  German  claimants,  as  against  7,376,000  de- 
manded; 9,400,000  to  British  claimants,  as  against  14,743,000  demanded;  10,898,000 
to  Belgian  claimants,  as  against  14,920,000  demanded.  The  Venezuelan  commis- 
sions acted  under  protocols  peculiarly  harsh  to  Venezuela,  for  example,  by  recog- 
nizing in  advance,  in  certain  protocols,  state  liability  for  acts  of  unsuccessful 
revolutionists.  Latane,  "The  forcible  collection  of  international  debts,"  in  the 
Atlantic  Monthly,  October,  1906,  p.  546);  French  claimants  were  awarded 
$685,000,  as  against  nearly  $8,000,000  demanded.  (The  Outlook,  1906,  Vol.  82, 
p.  104.)  To  the  Spanish  Treaty  Claims  Commission  claims  aggregating 
$64,931,694  were  presented,  of  which  $1,.387,845  were  allowed.  (Final  Rep., 
May  2,  1910,  pp.  19-20.)  Most  of  the  figures  presented  above  are  taken  from 
an  article  by  Amos  S.  Hershey  in  1  A.  J.  I.  L.  (1907),  p.  44,  and  from  a  paper  by 
Prof.  John  H.  Latane  in  the  Proceedings  of  the  American  Society  of  International 
Law,  1907,  p.  1.37. 

'  See  instruction  of  Secretary  of  State  Gresham,  to  Mr.  Ryan,  Minister  to  Mexico, 
April  26,  1893,  cited  in  Moore's  Dig.  VI,  270-271,  to  the  effect  that  only  "whore 
complete  international  equality  is  recognized,"  must  a  country  "admit  the  com- 
petency and  the  disposition  of  the  courts  of  the  other  to  do  complete  justice  to  all 
litigants  .  .  .  regardless  of  nationality." 

S(H'  also  opinion  of  M.  Thiers  cited  in  the  Project  presented  to  the  Pan-American 
Conference  of  1901  at  Mexico  by  a  delegation  of  several  Latin-American  states, 
session  of  December  4,  1901.  Second  International  American  Conference,  English 
text,  Mexico,  Gi)vernment  Printing  Office,  1902,  Vol.  2,  pp.  273-274.  See  also 
Moore's  Dig.  VI,  267. 


CONCLUSIONS  859 

America,  such  as  Argentine  and  Chile,  such  conditions  are  entirely 
a  matter  of  history.  Moreover,  it  is  unfair  to  these  exploited  countries 
to  place  foreigners  who  invest  their  capital,  their  time,  and  their  energy 
in  exploiting  the  natural  resources  of  these  countries,  in  such  a  favored 
position  that  their  presence  becomes  a  continual  potential  menace. 
These  individuals  often,  in  a  considerable  degree,  escape  all  obliga- 
tions to  their  own  country,  and  by  their  favored  position  as  foreigners, 
escape  most  of  the  obligations  of  the  citizens  of  the  country  in  which 
they  reside.  Their  investments  are  always  made  with  the  hope  of 
enormous  profits,  which  are  often  realized.  When  these  individuals 
so  closely  identify  themselves  with  the  life  of  their  country  of  residence, 
as,  for  instance,  by  marrying,  engaging  in  business,  and  permanently 
residing  there,  they  might  very  properl}'  be  compelled  to  bear  the 
obligations  of  citizenship.  They  might  then  have  more  interest  in 
improving  economic  and  social  conditions  and  political  organization. 
Certainly  they  should  be  required  to  do  more  than  simply  register 
their  intention  of  retaining  their  original  citizenship,  in  order  to  de- 
rive the  vast  benefits  which  accrue  from  the  possession  of  foreign 
nationality.  It  is  not  difficult  to  understand  the  desperation  to  which 
Latin-American  states  have  been  driven  in  the  attempt  to  overcome 
this  great  obstacle  to  their  progress. 

As  the  European  countries,  however,  have  the  necessary  war-ships 
to  enforce  demands,  just  and  unjust,  and  have  no  intention,  apparently, 
of  changing  their  attitude,  the  weaker  Latin- American  countries, 
who  alone  have  resorted  to  legislative  limitations,  have  gained  very 
little,  if  anything,  by  the  enactment  of  legislative  provisions  limiting 
the  diplomatic  protection  of  foreigners.  They  have,  indeed,  by  the 
enactment  of  such  drastic  laws,  suffered  greater  prejudice,  in  the  way 
of  lost  confidence,  than  would  have  resulted  from  the  complete  aban- 
donment of  their  rights  to  the  recognized  principles  of  international 
law  and  the  submission  of  their  case  to  the  public  opinion  of  the  world 

Just  as  contractual  claims  must  now,  by  the  Porter  proposition, 
be  first  submitted  to  arbitration  before  the  use  of  force  is  permissible, 
so  all  claims  should  be  submitted  to  international  arbitration  until 
that  time  comes  when  all  the  Latin-American  republics,  in  fact  as  well 
as  in  law,  shall  have  raised  their  standard  of  judicial  organization 


860  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

to  a  plane  at  which  even  the  European  countries  will  recognize  and 
admit  the  ability  of  their  courts  to  perform  their  full  international 
duty  as  measured  by  the  standards  of  international  law.  When  they 
shall  be  able  to  impress  this  fact  on  the  world,  measures  will  be  estab- 
lished by  international,  and  not  by  municipal  law,  which  will  relieve 
the  Latin- American  states  from  the  unwarranted  diplomatic  pressure 
of  foreign  claims.  Until  the  administration  of  justice  in  these  states, 
therefore,  itself  induces  that  confidence  which  will  relieve  them  from 
burdensome  diplomatic  claims,  foreign  governments  will,  it  is  feared, 
no  more  than  heretofore,  consider  themselves  hampered  by  the  pro- 
visions of  local  legislation. 


GENERAL  CONCLUSIONS 

The  discussion  of  the  present  practice  of  adjusting  international 
claims  may  warrant  a  brief  exposition  of  the  defects  of  the  existing 
system  and  an  indication  of  a  possible  line  of  progress. 

In  discussing  the  responsibility  of  the  state  in  the  case  of  claims 
arising  out  of  contracts,  reference  was  made  to  the  desirability  of  sub- 
mitting such  eminently  legal  claims  to  the  determination  of  an  inter- 
national court,  and  removing  them  from  the  uncertain  channels  of 
diplomacy.  This  resort  to  an  international  forum  might  be  immediate, 
or  follow  a  preliminary  attempt  and  failure  to  arrive  at  a  diplomatic 
adjustment.  A  considerable  advance  has  alreadj^  been  made  by  many 
nations  in  agreeing  to  submit  to  arbitration  all  claims  not  involving 
their  independence  or  national  honor.  By  the  Pan-American  treaty 
on  pecuniary  claims  of  January  30,  1902,  practically  all  the  republics 
on  this  continent  committed  themselves  to  the  obligatory  adjudication 
of  pecuniary  claims  which  failed  of  adjustment  by  diplomatic  nego- 
tiation. Moreover,  the  Central-American  Court  of  Justice  and  the 
unratified  international  prize  court  convention  at  The  Hague,  have 
adopted  the  principle  that  nations  can  be  sued  before  an  international 
forum  at  the  instance  of  an  aggrieved  individual.  These  evidences 
of  progress  give  some  tangible  ground  to  hope  that  in  the  not  too  dis- 
tant future  all  pecuniary  claims  may  be  submitted  to  a  permanently 
established  international  court,  an  innovation  which  would  foster 
individual  and  national  justice  and  constitute  a  marked  advance 
toward  world  peace. 

A  brief  account  of  the  defects  of  the  existing  system  of  instituting 
and  collecting  international  claims  will  show  the  desirability  of  an- 
improvement  in  procedure. 

The  claimant,  under  present  conditions,  presents  his  claim  to  the 
Foreign  Office  of  his  own  government  and  requests  diplomatic  inter- 
position.   It  may  be  assumed  that  he  has  exhausted  his  local  remedies 

861 


862  THE   DIPLOMATIC    PROTECTION    OF    CITIZENS   ABROAD 

abroad.  It  has  already  been  observed  that  if  the  claim  is  one  arising 
out  of  contract,  the  espousal  of  his  claim  depends  largely  upon  the 
policy  of  his  government  in  supporting  contractual  claims,  so  that 
in  effect  the  claimant's  remedy  in  these  cases  depends  primarily  upon 
his  nationality — an  unjust  distinction  and  discrimination  in  a  case 
purely  legal.  Again,  the  Foreign  Office  may  grant  or  refuse  diplo- 
matic action,  as  it  deems  advisable,  and  it  has  been  judicially  deter- 
mined in  the  United  States,  Great  Britain  and  France — and  the  rule 
is  probably  the  same  in  other  countries — that  the  Minister  for  Foreign 
Affairs  or  Secretary  of  State  cannot  be  compelled  by  the  courts  to 
institute  or  prosecute  a  diplomatic  claim. ^  The  claimant's  remedy, 
therefore,  depends  entirely  upon  the  willingness  of  his  government, 
in  its  unimpeachable  discretion,  to  espouse  his  claim.  Again,  the  For- 
eign Office  may  approve  his  claim,  and  yet  the  interests  of  the  nation 
or  its  relations  with  the  defendant  government  may  be  such  that  for 
poUtical  reasons  it  is  deemed  inexpedient  to  press  the  claim.  The 
archives  of  Foreign  Offices  are  filled  with  claims  which  have  accumu- 
lated for  years,  awaiting  some  happy  event  which  may  open  the  dip- 
lomatic channels  for  their  admission  to  arbitral  or  other  adjustment. 
The  unfortunate  and  uncertain  position  of  claimants  under  present 
conditions  is  readily  apparent. 

The  defendant  government,  now  often  too  weak  to  resist  the  demands 
of  a  strong  claimant  power  supporting  a  claim  intrinsically  unjust, 
would  profit  greatly  by  the  establishment  of  an  international  forum 
for  the  adjudication  of  pecuniary  claims.  While  the  Porter  proposi- 
tion,^ in  the  matter  of  contractual  claims,  is  intended  to  postpone 
the  Use  of  armed  force  until  an  offer  of  arbitration  has  been  refused, 
there  are  many  and  oppressive  measures  of  diplomatic  coercion  not 
so  violent,  but  nevertheless  as  burdensome  and  annoying,  and  in  result 

*  There  is  much  to  be  said  for  the  desirability  of  securing  governmental  approval 
of  a  citizen's  claim  as  a  condition  precedent  to  judicial  action.  The  necessity  for 
such  approval  may  be  preserved,  or  else,  as  an  offset,  the  individual  claimant  suing 
a  foreign  government  before  an  international  court  may  be  compelled  to  deposit  a 
sufficiently  heavy  security  for  costs  and  good  faith  as  to  subject  himself  to  heavv 
pecuniary  penalties  if  his  claim  is  considered  grossly  exorbitant  or  founded  in  bad 
faith. 

*  Supra,  §  122. 


GENERAL   CONCLUSIONS  863 

as  effective,  as  armed  force.  Although  defendant  governments  usually 
insist  upon  the  finality  of  the  decisions  of  their  municipal  courts,  a 
demand  which,  in  practice,  is  not  unqualifiedly  recognized  by  foreign 
governments,  they  would  find  their  condition  vastly  improved  by  the 
submission  of  claims  to  the  jurisdiction  of  an  international  court. 

The  claimant  government  and  its  Foreign  Office  would  also  be  greatly 
relieved  by  the  institution  of  a  permanent  court  for  the  adjudication 
of  pecuniary  claims.  These  claims  are  now  first  passed  upon  by  the 
law  officers  of  the  Foreign  Office,  who  must  act  on  ex  -parte  evidence 
and  who  have  not  at  their  disposal  the  judicial  machinery  necessary 
to  sift  uncertain  facts  and  doubtful  evidence.  Their  determination 
as  to  the  espousal  or  rejection  of  the  claim  is  not  based  upon  satis- 
factory data,  and  their  responsibility  in  setting  the  diplomatic  machinery 
in  operation  is  not  inconsiderable.  To  make  international  action, 
often  of  vast  financial,  and  at  times  political,  importance,  depend 
upon  an  administrative  decision  based  upon  ex  -parte  evidence,  alone 
invites  injustice  to  one  or  other  of  the  interested  parties. 

Finally,  the  fact  that  the  prosecution  of  pecuniary  claims  depends 
so  largely  upon  political  considerations,  and  the  fact  that  the  accumu- 
lation of  unsatisfied  claims  always  embodies  the  germ  of  international 
misunderstanding  and  controversy,  present  unassailable  grounds 
for  compelling  the  just,  speedy  and  peaceful  solution  of  the  rights 
of  the  parties. 

The  existing  conditions  give  reason  to  express  the  hope  that  inter- 
national pecuniary  claims  arising  out  of  injuries  to  citizens  may  grad- 
ually be  removed  from  the  arena  of  international  controversy,  with 
its  dangers  to  the  amicable  relations  of  states,  and  be  submitted  to 
an  international  forum  for  judicial  determination.  Such  a  forward 
step  in  the  development  of  international  relations  would  assure  the 
claimant  of  a  fair  judicial  hearing  (which  is  not  now  the  case),  and  the 
determination  of  his  rights  and  his  remedy  would  not  depend  upon 
his  nationality  or  upon  the  strength,  policy,  or  willingness  of  his  govern- 
ment to  entertain  the  claim,  but  upon  the  merits  of  his  case.  The 
defendant  government  would  be  relieved  from  the  diplomatic  pres- 
sure of  unjust  claims  which  by  its  very  weakness  it  now  feels  itself 
often  unable  to  resist.    The  Foreign  Office  of  the  claimant  government 


864  THE   DIPLOMATIC   PROTECTION   OF  CITIZENS  ABROAD 

would  be  immeasurably  relieved  by  not  having  to  present  claims  on 
ex  parte  evidence  and  enter  into  diplomatic  correspondence  which 
often  disturbs  friendly  relations.  The  peace  of  the  world  would  be 
advanced  by  removing  from  the  field  of  conflict  what  is  now  always 
a  germ  of  international  difficulty.  The  divorce  of  pecuniary  claims 
from  political  considerations,  a  union  which  now  not  only  results  in 
inexact  justice,  but  often  gross  injustice,  and  the  submission  of  such 
claims  to  the  determination  of  an  independent  international  tribunal, 
must  make  a  universal  appeal  to  man's  sentiment  for  justice. 


APPENDIX 

ALIENS 

Aliens  in  General. 

Bernheim,  A.  C.  The  history  of  the  law  of  aliens  from  the  standpoint  of  com- 
parative jurisprudence.    New  York,  1885. 

Esperson,  P.  Condizione  juridiche  dello  straniero  secondo  le  legislazioni  e  le 
giurisprudenze  itaUana  ed  estere.    Milano,  1889-1892.    2  v. 

Frisch,  Hans  von.  Das  Fremdenrecht.  Die  staatsrechtliche  Stellung  der 
Fremden.    Berlin,  1910. 

Das  Fremdenrecht,  von  Kurt  Wolzendorff  (based  on  Frisch's  work).  (67 
Ztschr.  f.  d.  ges.  Staatswissenschaft,  1911,  561-569.) 

Soloman,  Eugene.  Essai  sur  la  condition  juridique  des  Strangers  dans  les  legis- 
lations anciennes  et  le  droit  nioderne.    Paris,  1844. 

Burge,  Wm.  Commentaries  on  colonial  and  foreign  laws  generally.  .  .  .  New 
edition  by  A.  W.  Renton  and  G.  G.  Phillimore  ...  in  six  volumes.  Lon- 
don, 1907-1914.  V.  1-4. 

Report  of  Second  Pan-American  Conference.    Mexico,  1902. 

Moore's  Dig.,  IV.,  ch.  13,  pp.  1-238. 

The  continental  works  on  private  international  law,  particularly: 

Weiss,  Andre.  Traite  theorique  et  pratique  de  droit  international  prive.  2.  6d. 
Vol.  2.    Paris,  1908. 

Rolin,  Alberic.  Principes  de  droit  international  prive.  Pt.  1,  titre  2,  Paris, 
1897. 

Pillet,  Antoine.  Principes  de  droit  international  prive.  Ch.  6,  pp.  166-209. 
Paris,  1903. 

Laurent,  Frangois.     Droit  civil  international.    Vol.  1.    Bruxelles,  1880. 

Report  of  (British)  naturalization  commission  as  to  rights  and  duties  of  aliens. 
1869,  appendix,  II,  pp.  113-136. 

Les  droits  de  r6tat  et  les  droits  de  I'imraigrant  ctranger,  par  Charles  Turgeon. 
(2  Rev.  dr.  pub.,  1894,  391-423.) 

Le  droit  de  la  nation  et  le  droit  de  I'etranger,  par  Charles  Turgeon.  (2  Rev. 
d'dcon.  pol.,  1888,  233-277.) 

De  la  loi  applicable  a  I'etat,  a  la  capacitc  et  aux  meubles  des  etrangers,  par 
Polydore  de  Paepe.    (32  R.  D.  I.,  1900,  378-434.) 

La  condition  des  strangers  et  le  droit  international,  by  Thomas.  4  R.  G.  D.  I.  P. 
(1897),  620-645. 

Pappafava,  V.  Historische  Notizen  Uber  die  biirgerliche  Rechtstellung  der 
Fremden.  Vienna,  1892.  (Separat-abdruck  aus  der  Juristischen  Rundschau, 
Vol.  5,  Nos.  17-20.) 

De  la  condition  juridique  des  juifs,  par  A.  Giron.    (31  R.  D.  I,,  1899,  127-144.) 

865 


866  APPENDIX 

Bertholet,  Alfred.  Die  Stellung  der  Israeliten  und  der  Juden  zu  dem  Fremden. 
Freiburg  i/B.,  1896. 

Das  Fremdenrecht,  besonders  mit  Riicksicht  auf  Handels-  und  Gewerbe-betrieb 
der  Auslander,  in  den  Grosstaaten  der  Gegenwart  nach  den  neuesten  inter- 
nationalen  Vertragen,  von  H.  Strauch.  (13  Ztschr.  f.  d.  ges.  Staatswis- 
senschaft,  1869,  1-34.) 

Overbeck,  Alfred.  Niederlassungsfreiheit  und  Ausweisungsrecht  dargestellt 
auf  der  Grundlage  des  deutsch-schweizerischen  Vertrages  vom  31  Mai, 
1890.    Karlsruhe  i.  B.,  1907. 

Du  nouveau  role  de  I'assistance  Internationale  et  du  droit  de  sejour  des  etran- 
gers,  par  Tchernoff.    (12  Rev.  dr.  pub.,  1899,  86-129.) 

La  condizione  giuridica  dello  straniero  nel  passato  e  nel  presente,  per  S.  Gemma. 
(49  Archivio  giuridico,  1892,  369-454.) 

Reception  of  foreigners  and  right  of  asylum.  (Oppenheim,  L.  F.  L.  Interna- 
tional law.    2nded.    London,  1912.    Vol.  1,  pp.  369-372  and  bibliography.) 

Clunet— Tables  generales.  Vol.  1,  Nos.  2970-3437,  8344-8416.  On  all  branches 
of  the  law  of  aliens  and  the  conflict  of  laws  consult  the  elaborate  and  de- 
tailed bibliographies  in  the  Tables  generales  of  Clunet,  published  in  1904  in 
four  volumes.  These  bibliographies  are  continued  in  the  subsequent  an- 
nual volumes  of  Clunet. 

Important  cases  on  the  law  of  aliens  in  the  different  countries  of  the  world  are 
regularly  reported  in  Clunet's  Journal  du  droit  international  prive,  and  in 
Darras',  now  Lapradelle's,  Revue  de  droit  international  prive. 

Roman  Law, 

Murry,  A.    Condition  des  etrangers  en  droit  remain  et  en  droit  fran9ais.   Nancy, 

1894. 
Garnot,  X,     Apergu  sur  la  condition  des  etrangcrs  a  Rome,  et  condition  de 

I'etranger  sous  le  droit  public  frangais.    Paris,  1885. 
Bernheim,  A.  C.     The  history  of  the  law  of  aliens.    New  York,  1885. 

Admission  to  Territory. 

Laws  of  foreign  countries  respecting  the  admission  and  continued  residence  of 

destitute  aliens.    September,  1887.    58  p.     ([Misc.  Series,  No.  1],  C.  5168, 

Gt.  Brit.  Parliamentary  Papers.) 
Chantre,  Alfred.     Du  sejour  et  de  I'expulsion  des  etrangers.    Geneve,  1891. 
Immigration  and  emigration.    Regulations  of  the  Institute.    (11  Annuaire,  41, 

273,  277;  16  Annuaire,  263,  277.) 
Overbeck,  Alfred.     Niederlassungsfreiheit  und  Ausweisungsrecht.     Karlsruhe, 

1907. 
Jeancourt-Galignani,    Andrd.     L'immigration   en   droit    international.     Paris, 

1908. 
Bouv6,  Clement  L.     A  treatise  on  the  laws  governing  the  exclusion  and  exnul- 

sion  of  aliens  in  the  United  States.    Washington,  1912. 
A  question  of  international  law  in  the  deportation  of  aliens,  by  Charles  Noble 

Gregory.    (18  Jurid.  rev.  121-131.) 
Clunet— Tables  g6n(5rales,  Vol.  1,  Nos.  6979-7043,  9251-9269. 


APPENDIX  867 

Asylum. 

The  practice  of  asylum  in  legations  and  consulates  of  the  United  States,  by 

Barry  Gilbert.    (3  A.  J.  I.  L.,  1909,  562-595.) 
Michaud,  J.     Le  droit  d'asile  en  Europe  et  en  Angleterre.    Paris,  1858. 
Tobar  y  Borgofio.     L'asile  interne  devant  le  droit  international.    Barcelona  and 

Paris,  1911. 
United  States — Bolivia.     Asylum  in  legations.     Rules  adopted  by  the  diplo- 
matic corps  governing  cases  in  which  it  may  be  granted.    (For.  Rel.,  1898, 

171.) 
Political  offenses  and  the  right  of  asylum,  by  C.  Morse.    (30  Can.  L.  T.  786- 

788.) 
Le  droit  d'asile  dans  les  legations  et  les  consulats  etrangers  et  les  negociations 

pour  la  suppression  en  Haiti,  par  R.  Robin.    (15  R.  G.  D.  I.  P.,  1908,  461- 

508.) 

Bankruptcy. 

iSIeili,  Fr.     Lehrbuch  des  internationalen  Konkursrechts.    Ziirich,  1909. 

La  faillite  en  droit  international  prive,  par  Meili  et  Bonnecasse.  (39  Clunet, 
1912,  754-764.) 

Faillite.  Maison  de  commerce  etablie  dans  plusiers  pays.  Effet  de  la  declara- 
tion de  faillite  prononcee  dans  un  de  ces  pays  sur  la  capacite  et  les  biens  du 
failli  dans  les  autres  pays.  Indivisibility  et  universalite  de  la  faillite.  Ex- 
position de  la  doctrine  frangaise,  allemande,  anglaise,  beige,  itaUenne. 
(8  Clunet,  1881,  407-422.) 

Civil  Procedure. 

Fedozzi,  P.     II  diritto  processuale  civile  internazionale.    Bologna,  1905. 

Ramirez,  Gonzalo.  El  derecho  procesal  internacional  en  el  congreso  juridico  de 
Montevideo.    Montevideo,  1892. 

La  convention  internationale  de  La  Haye  du  17  juillet,  1905,  relative  a  la  pro- 
cedure civile,  par  Michel  Huisman.  (5  R.  D.  I.  prive,  1909,  707-710;  41 
R.  D.  I.,  1909,  320-339,  395-414.) 

Meili,  F.  Das  internationale  Civilprozessrecht  auf  Grund  der  Theorie,  Gesetz- 
gebung  und  Praxis.    Zurich,  1904.    2  v. 

Leske,  F.,  u.  Loewenfeld,  W.  Die  Rechtsverfolgung  im  internationalen  Verkehr, 
Berlin,  1896-1904.    4  vols. 

MoUer,  H.  A.  Handbuch  fiir  Rechtsverfolgung  im  Auslande.  3rd  ed.  (3  lan- 
guages).   Leipzig,  etc.,  1914. 

Security  for  Costs. 

Maudy,  Georges  A.  La  cautio  judicatum  solvi.  Les  etrangei*s  devant  la  jus- 
tice en  droit  international  prive.    Paris,  1897. 

Die  Sicherheitsleistung  von  Auslandern  und  die  Beschliisse  der  Haager  Kon- 
ferenzen,  von  Dr.  Fuld.  (6  Ztschr.  f.  int.  pr.  u.  Strafrecht,  1896,  481- 
485.) 

Die  Kostenkautionspflicht  und  die  Handelsvertrage,  von  Dr.  Fuld.  (4  Ztschr. 
f.  int.  pr.  u.  Strafrecht,  1894,  321-324.) 


8tj^  APPENDIX 

De  la  caution  "judicatum  solvi,"  par  Raoul  de  la  Grasserie.    (25  Clunet,  1898, 

842-867.) 
Security  for  costs,  by  S.  Goldschmidt.    (23rd  Ann.  Rep.,  1906,  Int.  Law  Asso., 

182-211.) 
De  la  caution  judicatum  solvi,  par  A.  Joccotton.     (1  R6v.  de  16g.,  1852, 179-208.) 
Cautio  judicatum  solvi.     Clunet — Tables  generates.  Vol.  1,  Nos.  5844-5871, 

8939-8941. 

Courts — Jurisdiction  of  Aliens  and  Foreign  States. 

Weiss,  A.     Traite  theorique  et  pratique  de  droit  international  prive.    2nd  ed, 

V.  5  and  6.    L'etranger  et  la  justice.    Paris,  1913. 
De  I'unification  des  lois,  d'un  projet  de  publication  de  codes  compares  et  d'une 

union  legislative  en  matiere  de  proces  entre  strangers,  par  M.  W.  Filder- 

mann.     (41  Society  de  legislation  comparee.  Bulletin  mensuel,  1910,  40&- 

431.) 
The  jurisdiction  of  courts  over  foreigners,  by  J.  H.  Beale.    (26  Harvard  Law 

Rev.,  1913,  193-211,  283-301.) 
De  la  competence  des  tribunaux  concernant  les  questions  d'etat,  de  capacity  per- 

sonnelle  et  de  rapports  de  famille  s'elevant  entre  etrangers,  par  P.  Esperson. 

(27  R.  D.  1.,  1895,  173-188,  362-380.) 
De  la  competence  a  I'^gard  des  strangers  dans  les  affaires  maritimes  et  de  la  loi 

applicable  a  I'abordage,  par  P.  de  Paepe.    (33  R.  D.  I.,  1901,  300-319,  362- 

388,  507-537.) 
Micard,  Gaston.     Le  r6le  du  juge  dans  I'application  des  lois  etrang^res.    Paris, 

1907. 
F6raud-Giraud,  L.  J.  D.     Etats  et  souverains;  ,  .  .  personnes  civiles  devant 

les  tribunaux  strangers.    Paris,  1895.    2  v. 
Tosi  Bellucci,  Luca  A.     Le  azioni  giudiziarie  contro  gli  stati  stranieri.    Torino, 

1909. 
Pillet,  A.     Les  conventions  Internationales  relatives  a  la  competence  judiciaire 

et  a  I'execution  des  jugements.    Paris,  1913. 
Brie,  Siegfried,  Fischer,  O.,  and  Fleischmann,  M.    Zwangsvollstreckung  gegen 

fremde  Staaten  und  Kompetenzkonflikt,  im  Anschluss  an  den  Fall  Hellfeld. 

Breslau,  1910. 
Paepe,  P.    Etudes  sur  la  competence  civile  a  I'egard  des  etats  etrangers  et  de 

leurs  agents  politiques,  diplomatiques  ou  consulaires.    Bruxellea,  1894. 
De  la  competence  des  tribunaux  a  I'egard  des  souverains  et  etats  etrangers,  par 

Gabba.     (15  Clunet,  1888,  180-191;  16  Clunet,  1889,  538-554;  17  Clunet, 

1890,  27-41.) 
Ueber  die  Zustandigkeit  inlandischer  Gerichte  gegeniiber  fremden  Staaten,  von 

Dionisio  Anzilotti.    (5  Ztschr.  f.  int.  pr.  u.  Strafrocht,  1895,  138-147.) 
De  la  competence  des  tribunaux  dans  les  proces  contre  les  etats  et  souverains 

strangers,  par  Adolphe  Ilartmann.    (22  R.  D.  I.,  1890,  42.5-437.) 
Bar,  L.  <le.     Institut  de  droit  international.     XVe  commission.     Competence 

des  tribunaux  dans  les  proces  contre  les  etats  ou  souverains  etrangers. 

Projet  de  rdglement  international  suivi  d'un  rapport.    Bruxellea,  1891  and 

10  Clunet,  1892,  314. 


APPENDIX  869 

Piot,  Gaston.  [De  I'alidnation  de  I'ager  publicua  pendant  la  periode  r6publi- 
caine.]  Des  regies  de  competence  applicables  aux  ^tats  et  aux  aouveraina 
strangers.    Paris,  1887. 

Pauper  Litigants. 

Pauper  foreign  litigants,  by  Victor  Schneider.  (23rd  Ann.  Rep.  Int.  Law 
Asso.,  1906,  pp.  164-182.) 

Corporations,  Foreign.    See  Foreign  Corporations. 

Domicil. 

Du  r6le  international  du  domicile,  par  A.  Chausse.    (24  Clunet,  1897,  5-31.) 

Domicile  and  allegiance,  or  civil  and  political  status,  and  extradition,  by  Wil- 
liam Griffith.     (15th  Report,  Int.  Law  Asso.,  1892,  165-168.) 

Conflicto  entra  la  nacionalidad  y  el  domicilio.  Por  Manuel  Torres  Campos. 
(112  Rev.  gen.  de  leg.  y  jur.,  1908,  313-317.) 

La  loi  du  domicile  et  la  loi  de  la  nationalite  en  droit  international  prive,  par 
Henri  Jacques.    (18  R.  D.  I.,  1886,  563-572.) 

Aliens — Right  of  domicile,  and  civil  law  consequences  flowing  therefrom.  Ap- 
plication of  "personal  law"  in  private  international  law.  (Pradier-Fodere, 
P.  L.  Traits  de  droit  international  public.  Vol.  3,  §§  1694-1703.  Paris, 
1885.) 

Expulsion. 

Bouve,  Clement  L.  A  treatise  on  the  laws  governing  the  exclusion  and  expul- 
sion of  aliens  in  the  United  States.  Washington,  1912.  (Appendix  contains 
laws  of  foreign  countries.) 

Martini,  Alexis.  L'expulsion  des  strangers.  Etude  de  droit  compart.  Paris, 
1909. 

Darut,  Joseph  A.     De  l'expulsion  des  strangers.    Aix,  1902. 

Overbeck,  Alfred  F.  Niederlassungsfreiheit  und  .\u8weisung8recht.  Karlsruhe, 
1907. 

Caruso,  G.     II  diritto  di  espulsione.    2.  ed.    Palermo,  1909. 

Langhard,  J.     Das  Recht  der  politischen  Fremdenausweisung.    Leipzig,  1891. 

Feraud-Giraud,  L.  J.  D.  Droit  d'expulsion  des  etrangers.  Aix,  1889.  (See 
also,  19  R.  D.  I.,  1887,  1-16). 

Bes  de  Berg,  E.     De  l'expulsion  des  etrangers.    (These).    Paris,  1888. 

Das  Recht  der  Ausweisung  in  den  Kulturstaaten,  von  Wilhelm  Bitterman. 
(Jahrb.  f.  d.  int.  Rechtsverkehr,  1912-13,  553-569.) 

L'expulsion  des  etrangers,  par  L.  von  Bar.    (13  Clunet,  1886,  5-16.) 

Droit  (l'expulsion  des  Strangers,  par  Rolin-Jaqcuemyns.  (20  R.  D.  I.,  1888, 
498-504,  607-8.) 

De  la  nationalite  et  du  droit  d'expulsion,  par  Raymond  Hubert.  (22  Clunet, 
1895,  524-548;  23  Clunet,  320-334.) 

Le  differend  entre  I'Espagne  et  les  Etats-Unis  au  sujet  de  la  question  cubaine. 
Les  expulsions  et  les  proems  des  citoyens  Nord-americaina  i  Cuba.  Par 
Marquis  de  Olivart.    (10  R.  G.  D.  I.  P.,  1903,  577-602.) 


870  APPENDIX 

Case  of  A.  F.  Jaurett  in  volume  "  Correepondence  relating  to  wrongs  done  V) 
American  citizens  by  Venezuela."  Statement  of  law  re  expulsion  with 
opinions  of  writers.    (Sen.  Doc.  413,  60th  Cong.,  1st  sess.,  1908,  pp.  9-36.) 

Ben  Tillet  Affaire.  By  Desjardins,  umpire  in  case  of  expulsion  between  England 
and  Belgium.    (26  Clunet,  1899,  203-216.) 

Conflit  entre  I'Angleterre  et  la  Belgique  a  propos  de  I'expulsion  du  sieur  Ben- 
Tillet  de  la  Belgique  (20  aout  1896).  Documents  produits  devant  I'arbitre. 
Sentence  arbitrale.    Bruxelles,  1900. 

Ben  Tillet  case.    (6  R.  G.  D.  I.  P.,  1899,  46-55;  4  R.  G.  D.  I.  P.,  793,  note  1.) 

L'institut  de  droit  international,  11  Annuaire,  273-320;  12  Annuaire,  184-226. 

Clunet— Tables  gendrales,  Vol.  1,  Nos.  7063-7097,  9271-9280. 

Extraterritoriality. 

Letter  from  the  Secretary  of  State,  addressed  to  Hon.  Wm.  Windom,  chairman 
Committee  on  Foreign  Relations,  and  other  papers,  relative  to  the  exercise 
of  judicial  extraterritorial  rights  conferred  upon  the  United  States.  [Wash- 
ington, 1882.]    (47th  Cong.,  1st  sess.    Senate  Misc.  Doc.  89.) 

Opinion  of  the  attorney  general  concerning  the  judicial  authority  of  the  com- 
missioner or  minister  and  of  consuls  of  the  United  States  in  China  and 
Turkey.    Washington,  1855. 

Hall,  William  E.  A  treatise  on  the  foreign  powers  and  jurisdiction  of  the  British 
crown.    Oxford,  1894. 

Piggott,  Francis  T.  Exterritoriality.  The  law  relating  to  consular  jurisdic- 
tion and  to  residence  in  Oriental  countries.    New  ed.    Hongkong,  1907. 

Hinckley,  F.  E.  American  consular  jurisdiction  in  the  Orient.  Washington, 
1905. 

Domicile  in  countries  granting  exterritorial  privileges  to  foreigners,  by  C.  H. 
Huberich     (24  Law  Quar.  Rev.,  1908,  440-448.) 

Rey,  Francis.  De  la  protection  diplomatique  et  consulaire  dans  les  echelles  du 
Levant  et  de  Barbaric.    Paris,  1899. 

Feraud-Giraud,  L.  J.  D.  De  la  juridiction  frangaise  dans  les  Echelles  du  Levant. 
2.  ed.    Paris,  1866. 

Lawrence,  William  Beach.  Etudes  sur  la  juridiction  consulaire  en  pays  chretiene 
et  en  pays  non  chretiens,  et  sur  1' extradition.    Leipzig,  1880. 

Pidtri,  Francois.    Etude  critique  sur  la  fiction  d'exterritorialite.    Paris,  1895. 

Vercamer,  Em.  Des  franchises  diplomatiques  et  specialement  de  I'exterritoria- 
lite.  Etude  de  droit  international  et  de  legislation  comparee.  Paris, 
1891. 

Heyking,  Alphons.     L'exterritorialite.    Berlin,  1889. 

Ravaut-Bignon,  Robert.  Du  droit  de  police  des  consuls  dans  les  pays  hors- 
chretientc.    Paris,  1905. 

Rioche,  Yves.  Les  juridictions  consulaires  anglaises  dans  les  pays  d'Orient, 
Turquie,  Perse,  Mascate,  Maroc.    Paris,  1904. 

Mouy,  R.  de,  and  Dislere,  Paul.  Droits  et  devoirs  des  fran^ais  dans  les  pays 
d'Orient.    Paris,  1894. 

Wrangell,  Moritz.  Die  Eigengerichtsbarkeit  der  SouverSne  und  Gesandten 
fiber  ihr  Gefolge.    Boma-Leipzig,  1908. 


APPENDIX  871 

Martens,   F.     Daa   Consularwesen   und   die   Consularjurisdiction    im    Orient. 

Berlin,  1874. 
Lippmann,  Karl.     Die  Konsular-jurisdiktion  im  Orient  .  .  .    Leipzig,  1898. 
Die  Rechtsverhaltnisse  der  30g.     'Sujets  Mixtes."    Unter  Beniitzung  aratlichor 

Quellen  bearbeitet.    (12  Archiv  f.  off.  Recht.,  1897,  200-240,  317-379.) 
Torres  Campos,  Manuel.     Bases  de  una  legislacion  sobre  extraterritorialidad. 

Madrid,  1896. 
See  also  China,  Turkey,  Morocco,  Egypt,  Siam  and  Persia,  infra. 

Extraterritorial  Crime. 

Clunet,  Edouard.    Offenses  et  actes  hostiles  commis  par  des  particuliers  contre 

un  etat  etranger.    2.  ed.    Paris,  1887. 
Hepner,  Adolf.     Extraterritorial  criminal  jurisdiction  and  its  effect  on  American 

citizens.    Washington,  1890.    (51st  Cong.,  1st  sess..  Senate  Misc.  Doc,  211.) 
Report  on  extraterritorial  crime  and  the  Cutting  case.     Washington,   1887. 

(Study  in  comparative  and  international  law  by  John  Bassett  Moore.) 
Lewis,  George  C.    On  foreign  jurisdiction  and  the  extradition  of  criminals. 

London,  1859. 

Extradition. 

Moore,  J.  B.    A  treatise  on  extradition  and  interstate  rendition.    Boston,  1891. 

2  V. 
Bernard,  Paul.     Traite  theorique  et  pratique  de  I'extradition.     2.  ed.     Paris, 

1890.    2v. 
Feraud-Giraud,  L.  J.  D.     De  I'extradition.    Paris,  1890. 
3aint-Aubin,  J.    Extradition  (includes  extradition  treaties  concluded  by  France). 

Pari.-,  1914.    2  v. 
Report  on  extradition,  with  returns  of  all  cases  from  1842  to  1890.     By  J.  B. 

Moore.    Washington,  1890. 
Moore's  Dig.  IV,  ch.  14,  pp.  239-424. 
Ein   Beitrag  zur  Geschichte  des  Auslieferungsrechts,   von    W.   Mettgenberg. 

(18  Ztschr.  f.  int.  pr.  u.  off.  Recht.,  1908,  40-60). 
Des  droits  de  I'individu  en  matiere  d' extradition,  par  Prof.  Struycken.     (27th 

Rep.  Int.  Law  Asso.,  1912,  139-153.) 

Foreign  Corporations. 

Young,  Edward  H.     Foreign  companies  and  other  corporations.     Cambridge, 

1912. 
Status  of  foreign  corporations  and  the  legislature,  by  E.  H.  Young.     (23  Law 

Quar.  Rev.,  1907,  151-164,  290-303.) 
The  legal  personality  of  a  foreign  corporation,  by  E.  H  Young.     (22  Law  Quar. 

Rev.,  1906,  178-189.) 
The  nationality  of  a  juristic  person,  by  E.  H.  Young.     (22  Harvard  L.  Rev., 

1-26.) 
Haladjian,  B.     Des  personnea  morales  etrang^res,  specialement   des  societea 

commercialea  ^trangdres,  en  droit  international  prive  et  en  droit  compare. 

Paris,  1901. 


872  APPENDIX 

Mamelok,  A.     Die  juristische  Person  im  internationalen  Privatrecht.     ZOrich, 

1900. 
leay,  E.     Die  Staatsangehorigkeit  der  juristischen  Pereonen.     Tubingen,  1907. 
Walker,  G.     Die  rechtliche  Stellung  auslandischer  jurietischer  Personen,  ins- 

besondere  auslandischer  Aktiengesellschaften.     Wien,   1898.     (Aus:  AUg. 

osterr.  Gerichts-Zeitg.) 
Sacopoulo,  Andre   N.     Des  personnes  morales  en  droit  international  priv6. 

Geneve,  1898. 
Pillet,  A.     Des  personnes  morales  en  droit  international  priv6.    Paris,  1914. 
Des  personnes  morales  en  droit  international  priv6,  par  Armand  Laine.     (20 

Clunet,  1893,  273-309.) 
De  la  nationality  des  societes  par  actions,  par  Prince  Cassano.    (19th  Report, 

Int.  Law  Asso.,  1900,  330-338.) 
De  la  nationalite  des  societes  anonymes  en  droit  international,  by  G.  de  Leva!. 

(23rd  Rep.  Int.  Law  Asso.,  360-369.) 
Des  divers  systemes  Icgislatifs  concernant  la  condition  legale  des  societds  etran- 

geres  par  actions  et  des  reformcs  a  apporter  a  la  legislation  fran^aise,  par 

Ch.  Lyon-Caen.    (12  Clunet,  1885,  265-274.) 
La  condition  juridique  des  societes  anonymes  etrangeres,  par  Andor  Jacobi. 

(27th  Rep.  Int.  Law  Asso.,  1912,  368-380.) 
International  recognition  of  foreign  companies.      (23rd  Ann.  Rep.  Int.  Law 

Asso.,  1906,  353-359,  372-380). 
Le  reproscntant  responsable  des  societes  etrangeres  vis-a-vis  du  fisc.    Par  Albert 

Wahl.    (26  Clunet,  1899,  913-940.) 
Foreign  corporations.     Their  legal  position  in  different  countries.     (1  Proces- 

verbaux  des  seances  et  documents,   Inst,  de  Dr.  Comparee,  1900,   530- 

602.) 
Wauwermans,  M.     Code  des  societes  anonymes  etrangeres.      Bruxelles,  1913. 

(Contains  the  legislation  of  the  countries  of  Europe.) 
Corporations.     11  Annuaire  de  I'lnstitut  de  Dr.  Int.,  [Hamburg  session,  1891] 

(pp.  171-2). 
Public  and  quasi-public  corporations.     (16  Annuaire  [Copenhagen  session,  1897], 

279-308.) 
Clunet— Tables  generales.  Vol.  1,  Nos.  3328-3436. 

Foreign  Judgments. 

LaLoggia,  Enrico.     La  esecuzione  delle  sentenze  straniere  (in  materia  civile). 

Torino,  1902. 
Gidel,  Gilbert.     De  refficacite  extraterritorial  des  jugements  r^presifs.     Paris, 

1905. 
Piggott,  Francis  T,     Foreign  judgments  and  jurisdiction.    London,  1908.     3  v. 
Pillet,   Antoine.     Les  conventions  internationales  relatives  a  la   competence 

judiciaire  et  a  I'ex^cution  do^s  jugements.    Paris,  1913. 
Bartin,  l^tieime.     Etudes  sur  les  effets  internationaux  des  jugements.     1.  De  la 

competence  du  tribunal  <5tranger.    Paris,  1907.     (Also  in  31  Clunet,  1904, 

.5-39,  802-820;  32  Clunet,  1905,  59-95,  815-850;  33  Clunet,  1906,  27-47, 

995-1016.) 


APPENDIX  873 

L'ex^cution  des  jugements  en  pays  etrangere,  par  A.  Rolin.    (43  R.  D.  I.,  1912, 

248-2t)9.) 
Der  ausliindische  Schiedsspruch;  seine  VVirksamkeit  und  Vollstreckbarkeit  im 

Inlande,  von  J.  Westheimer.    (39  Ztschr.  f.  deut.  Zivilprozess,  241-331.) 

Guardianship. 

Die  \'orniundschaft  iiber  Minderjiihrige  im  internationalen  Privatrecht,  von 
G.  Horn.    (1912-13  Jahrb.  f.  d.  int.  Rechtsverkehr,  128-149.) 

Do  la  tutelle  des  inineurs  en  droit  international  prive,  par  Ernest  Chavegrin. 
(12  N.  S.,  Rev.  crit.  de  leg.  et  de  juris.,  1883,  497-523,  573-587.) 

Alleniagne,  Autriche-Hongrie,  Belgique,  Espagne,  France,  Italie,  Luxembourg, 
Pays-Bas,  Portugal,  Rouinanie,  Suede  et  Suisse.  Convention  du  12  juin, 
1902  pour  rogler  la  tutelle  des  niineurs.  (9  R.  G.  D.  I.  P.,  1902,  Docu- 
ments, pp.  23-24.) 

Industrial  Property,  Literary  Property,  etc. 

Iruiiistrial  Property. 

Recueil  general  de  la  legislation  et  des  traites  concernant  la  propri^t<5  mdustrielle. 

Public  par  le  Bureau  international  de  1' Union  pour  la  protection  de  la 

pro|)rietc  industrielle.    Berne,  1896-1912.    7  vols. 
Fairweather,  W.  C.     Foreign  and  colonial  patent  laws.    London,  1910. 
Kohler,  J.,  and  Mintz,  M.     Die  Patentgesetze  aller  \'olker.     The  patent  laws 

of  all  nations.    Berlin,  1907-1909.    Vols.  1-2  and  continuation. 
Singer,  Berthold.     Trade-mark  laws  of  the  world.    Chicago,  1913. 
Industrial  problems  from  the  point  of  view  of  international  law,  bj'  Bela  Nemers. 

(27th  Rept.  Int.  Law  Asso.,  1912,  675-694.) 
Osterrieth,  A.,  and  Axster,  A.     Die  Internationale  tjbereinkunft  zum  Schutze 

des  gewerblichen   Eigentums  von    20.   III.,  1883.      (Pariser  Konvention) 

Berlin,  1903. 
Neuberg,  J.     Der  internationale  gewerbliche  Rechtsschutz.    Leipzig,  1908. 
Des  moyens  pratiques  d'assurer  I'acces  des  tribunaux  aus  etrangers  (en  matiere 

de  propriete  industrielle),  par  Josephus  Jitta.    (15  La  Propriete  industrielle, 

1899,  181-4.) 
Brun,  Joseph  L.     Les  marques  de  fabrique  et  de  commerce  en  droit  fran^ais, 

droit  compare  et  droit  international.    Paris,  1895. 
Tableau  comparatif  des  conditions  et  formalites  requises  dans  les  divers  pays 

pour  le  depot  de  ces  marques.     I.  Avis  preliminaire.     II.  Aper(^u  sur  le 

regime  international  des  marques.     (15  La  Propriete  industrielle,    1899, 

117-157.) 
Pradier-Fodere,  Paul   L.     Traite  de  droit  international  public   Europeen    et 

Am6ricain.    IV,  §§  2237-2253.    Paris,  1885. 

Literary  property. 

[Hedeler,  Gustav].     Gesetze  liber  das  Urheberrecht  in  alien  Landern.     2  aufl. 

Leipzig,  1902. 
Lyon-Caen,  C.  L.     Lois  frangaises  et  Strangers  sur  la  propri^t^  litteraire  et 
artistiquo.    Paris,  1889-1896.    3  v. 


874  APPENDIX 

Singer,  Berthold.     Copyright  laws  of  the  world.    Chicago,  1909. 

Darras,  Alcide.     Des  droits  intcllectuels.      1.     Du  droit  des  auteurs  et  des 

artistes  dans  les  rapports  internationaux.    Paris,  1887. 
Silvy,  Edouard.     Des  droits  des  auteurs  et  des  artistes  sur  leurs  oeuvres  au 

point  de  vue  international.    Grenoble,  1894. 
Rothlisberger,  Ernst.     Der  interne  und  der  internationale  Schutz  des  Urheber- 

rechts  in  den  verschiedenen  Landern.    Leipzig,  1905. 
Orelli,    A.    d'.      Der   internationale   Schutz    des    Urheberrechts.      Hamburg, 

1887. 
Paquy,   L.     Des  droits  des  auteurs  et  des  artistes  au  point  de  vue  du  droit 

international.    Paris,  1884  (second  part  of  doctor's  thesis). 
Rosmini,  Enrico.     Le  convenzioni  internazionali  sui  diritti  d'autore  e  le  logis- 

lazioni  interne  dei  vari  stati.    Milan,  1886-1894. 
De  la  revision  en  1908  de  la  Convention  de  Berne  pour  la  protection  des  oeuvres 

litteraires  et  artistiqvios.     (Conference  de  Berlin,  15  octobre-11  novembre, 

1908).    Par  Joseph  Dubois.    (36  Clunet,  1909,  954-982.) 
Unions  et  accords  en  matiere  de  protection  de  la  propriete  litteraire  et  artistique, 

par  Ernst  Rothlisberger.     (1  R.  D.  I.  prive,  1905,  300-307;  4  R.  D.  I, 

prive,  1908,  88-110.) 
Rothlisberger,  Ernst.     Der  interne  u.  dei'  internationale  Schutz  des  Urheber- 
rechts in  den  Landern  des  Erdballs.    3rd  ed.    Leipzig,  1914. 
Notes  et  renseignements  relatifs  a  la  propriete  litteraire  et  artistique,  par  E. 

Chavegrin.    (28  Clunet,  1901,  50-65,  481-497,  729-737.) 
Pradier-Fodere,   Paul  L.     Traite  de  droit  international  public   Europeen   et 

Americain,  IV,  §§  2219-2237.    Paris,  1885. 

Labor  and  Workmen's  Compensation. 

Pic,  Paul  J.  V.     La  protection  legale  des  travailleurs  et  le  droit  international 

ouvrier.    Paris,  1909. 
Raynaud,  B.     Droit  international  ouvrier.    Paris,  1906. 
Chatelain,  L.     La  protection  internationale  ouvrier.    Paris,  1908. 
Dupre,  Rene.     liltude  de  droit  international  public  et  prive.     La  protection 

internationale  des  travailleurs  en  ce  qui  concerne  I'assurance  et  la  prevoy- 

ance  sociale.    Paris,  1909. 
Widiez,  M.     Les  ctrangers  dans  les  lois  sur  les  accidents  de  travail  et  les  re- 

traites  ouvrieres.    Paris,  1913  (doctor's  thesis). 
Gemma,  Scipione.     II  diritto  internazionale  del  lavoro.    Roma,  1912. 
Die  Stellung  der  Auslander  in  der  Arbeiterversicherung  der  europiiischen  Staaten, 

von  F.  W.  Giinther.     (6  Ztschr.  f.  d.  ges.  Versicherungswissenschaft,  1906, 

488-516.) 
Le  traitement  des  ctrangers  au  point  de  vue  de  la  responsabilite  civile  et  de 

Tas-surance,  par  E.  Feigenwinter.    (2  R.  D.  I.  prive,  1906,  94-101;  4  R. 

D.  I.  prive,  1908,  24-35.) 
Les  r<5cents  progres  du  droit  international  ouvrier;  les  conferences  de  Berne  et 

leurs  resultats,  par  Paul  Pic.     (5  R.  D.  I.  priv6,  1909,  501-520.) 
La  r6ciprocit6  en  matiSre  de  retraites  des  ouvriera  dtrangers,  par  B.  Raynaud. 

(33  Clunet,  1906,  115-124.) 


APPENDIX  875 

Marriage  and  Divorce. 

Hague  conventions  on  private  international  law.     International  conventions 

relating  U)  differences  in  marriage  laws,  divorce  laws  and  the  guardianship 

of  minors.    (For.  Rel.  1904,  526-532.) 
Renton,  Alexander  W.,  and  Phillimore,  George  G.    The  comparative  law  of  mar- 
riage and  divorce.    London,  1910.    (Reprinted  from  the  2nd  ed.  of  "  Surge's 

Commentaries  on  colonial  and  foreign  laws,"  vol.  3). 
Leske,  Franz,  and  Lowenfeld,  William.    Die  Rechtsverfolgung  im  internation- 

alen  Verkehr.    Vol.  4.    Das  Eherecht  der  Europaischen  Staaten  and  ihrer 

Kolonien.    Berlin,  1904. 
Roguin,  Ernest.     Traite  de  droit  civil  compare.     Vols.   1-2.    Paris,    1904- 

1905. 
Lehr,  Ernest.     Le  marriage,  le  divorce  et  la  separation  de  corps  dans  les  princi- 

paux  pays  civilises.    Paris,  1899. 
Buzzati,  G.  C.     Le  droit  international  priv6  d'apres  les  conventions  de  La  Haye. 

I.    Le  mariage.    Traduction  frangaise  par  Fr.  Rey.    Paris,  1911. 
Orescu,  Alexandre  C.     Le  mariage  quant  aux  conditions  intrinseques  et  aux 

formalites  exterieures  en  droit  international  prive.    Paris,  1908. 
Cimbali,  Ed.     II  matriraonio  dello  straniero.    Turin,  1898.    2  v. 
Delprat,  Etienne.     Les  formalites  civiles  du  mariage  en  droit  compare  et  en 

droit  international  moderne  (these).    Toulouse,  1907. 
The  conflict  of  marriage  laws,  by  Travers  Twiss.     [10th  Ann.  Conf.  (1882)  of 

the  .Asso.  for  the  Reform  and  Codification  of  the  Law  of  Nations,  pp.  143- 

152.] 
Nichtigkeitserklarung  und  Auflosung  der  Ehe  im  intern ationalen  Verkehr  und 

die  BeschlUsse  des  Haager  Kongresses  iiber  die  Eheschliessung,  von  J.  Keidel 

Mariolle.    (8  Ztschr.  f.  int.  Pr.  u.  Strafrecht,  1898,  133-142.) 
Pradier-Fodere,    Paul   L.     Traite  de  droit  international  public  Europeen  et 

Am^ricain,  III,  §§  1716-1752.    Paris,  1885. 

Poor  Relief. 

La  conference  internationale  d'assistance  aux  6trangers  (at  Paris,  November, 
1912),  by  B.  Raynaud.     9  Rev.  dr.  int.  prive,  (1913),  385-403,  617-628. 

Succession. 

Raison,  F.  Traite  des  successions  d'etrangers.  2.  ed.  Paris,  1911.  First  sup- 
plement, 1913. 

Bohm,  Ferdinand.  Handbuch  der  internationalen  Nachlassbehandlung  mit 
bosonderer  Riicksicht  auf  das  Deutsche  Reich.  Augsburg,  1881-1885. 
2  V.  in  1. 

Pfordten,  Th.  Die  Behandlung  des  Nachlasses  von  Auslandern.  MUnchen, 
1904. 

Contuzzi,  F.  P.     II  diritto  ereditario  internazionale.     Milano,  1908. 

Estates  of  Americans  dying  abroad.  Letter  from  Secretar>'  of  Treasury.  Wash- 
ington, 1910.    (61st.  Cong.,  2nd  sess.,  H.  Doc.  738.) 

Des  successions  dans  le  droit  fiscal  international,  par  Henri  Compain.  (36 
Clunet,  1909,  640-661,  982-1003.) 


876  APPENDIX 

Erbschaftssteuern  im  Auslande,  von  Dr.  Schuster.     (13  Deutsche  Juristenzeit- 

ung,  1908,  1101-1102.) 
La  r^gle  "locus  regit  actum"  et  le  testament,  par  F.  Surville.    (33  Clunet,  1906, 

961-976.) 
Pradier-Fodere,   Paul  L.     Traits  de  droit  international   public  Europeen    et 

Americain,  III,  §§  1774-1783.    Paris,  1885. 
See  also  the  commercial  and  consular  treaties  concluded  by  the  United  States 

with  foreign  countries. 

AUSTRIA-HUNGARY 
General  Works. 

Vesque  von  Piittlingen,  J.     Handboch  des  in  Oesterreich-Ungarn  geltenden 

internationalen  Privatrechts.    2.  4d.    Vienna,  1878. 
Jettel,    Emil.     Handbuch    des    internationalen    Privat-    und    Strafrechts    mit 

Riicksicht  auf  die  Gesetzgebungen  Oesterreichs,  Ungarns,  Croatiens  und 

Bosniens.    Vienna  and  Leipzig,  1892. 

Aliens  in  GeneraL 

Vesque  von  Piittlingen,  Johann.     Die  gesetzliche  Behandlung  der  Auslander  in 

Oesterreich.    Vienna,  1842. 
Piitter,  K.  Th.     Das  praktische  europaische  Fremdenrecht.    Leipzig,  1845. 
Mischler,  E.,  and  Ulbrich,  J.   Oesterreichisches  Staatsworterbuch.    2.  aufl,  Wien, 

1905-1909.    4  v. 
De  la  condition  legale  des  etrangers  en  Autriche,  par  F61ix  Stoerk.    (7  Clunet, 

1880,  329-337.) 
Die  personliche  Fahigkeit  der  Fremden  zu  Rechtsgeschaften  imd  ihr  Kriteriura 

in  Oesterreich,  von  Heinrich  Kahane.     (18  Ztschr.  f.  d.  pr.  u.  off.  Recht, 

113-147.) 

Foreign  Corporations. 

Lecourt,  Arthur,  Droit  etranger.  Autriche-Hongrie.  fitude  sur  la  situation 
legale  des  socictes  etrangeres  en  Autriche  et  en  Hongrie.     Bruxelles,  1910. 

Admission  of  United  States  corporations  to  engage  in  business  in  Austria- 
Hungary.     (For.  Rel.,  1903,  17-19.) 

Die  rechtliche  Stellung  auslandischer  juristischer  Personen,  insbesondere  aus- 
landischer  Actiengesellschaften,  von  Gustav  Walker.  (Allg.  osterr. 
Gerichtszeitung,  1897,  No.  44,  46-49),  and  separate,  Wien,  1897. 

Condition  des  socictes  Etrangeres  en  Hongrie,  par  L.  Beauchet.  (14  Clunet, 
1SS7,  171-175.) 

Foreign  Judgments. 

Die  Regelung  der  Anerkennung  auslandischer  Urteile  in  Ungarn,  "on  A.  Schmidt. 
(5  R.  D.  I.  priv6,  1909,  718-719;  5  Blatt.  f.  vergl.  Rechtswissenschaft, 
1909,  255-256.) 

Marriage. 

J^c  droit  international  priv6  du  mariage  en  Hongrie,  par  Arpad  Ferenczy.  (fi 
R.  D.  I.  priv6,  1909,  04-78.) 


APPENDIX  877 

Poor  Relief,  etc. 

Insane  Americans  in  Austrian  asylums.    (For.  Rel.,  1897,  9-16.) 

Succession. 

Zur  Verlassenschaftsabhandlung  nach  in  Oesterreich  verstorbenen  Auslandern, 
von  Gustav  Walker.     (9  Ztscher.  f.  int.  Pr.  u.  Strafrecht,  1899,  302-304). 

Zur  Verlassenschaftsabhandlung  nach  in  Oesterreich  verstorbenen  Auslandern, 
von  C.  A.  Kockmann.     (9  Ztschr.  f.  int.  Pr.  u.  Strafrecht,  1899,  107-109.) 

Taxation. 

Personaleinkoramensteuerpflicht  von  Auslandern  in  Oesterreich,  by  Brabble. 
Zschr.  f.  Notariat,  1905. 

BELGIUM 
General  Works. 

Laurent,  Frangois.     Droit  civil  international.    Bruxelles,  1880-1881.    8  v. 
Rolin,  Alb^ric.     Principes  du  droit  international  priv6.    Paris,  1897.    3  v. 

Aliens  in  GeneraL 

Lippens,  Hippolyte.     Expose  du  syst^me  de  la  legislation  civile  sur  les  droits 

dont  les  etrangers  jouissent  en  Belgique.    Gand,  1871. 
De  Soignie,  J.     Traite  du  droit  des  etrangers  en  Belgique.    Bruxelles,  1873. 
Haus,  A.     Du  droit  prive  qui  regit  les  etrangers  en  Belgique.    Gand,  1874. 
Halot,  Alexandre.     Traite  de  la  situation  legale  des  etrangers  en  Belgique. 

Bruxelles,  1900. 
Glesner,  Fernand.     Commentaire  de  la  loi  du  8  juin  1909  ayant  pour  objet 

I'acquisition  et  la  perte  de  la  nationalite  beige.    Namur,  [1909]. 
Otto,  Hubert.     De  la  nationalite  et  de  I'indigenat  en  Belgique;  commentaire 

de  la  loi  du  8  juin  1909.    Bruxelles,  1911. 
Rahlenbeck,  Gustav.     Der  praktische  Rechtsbeistand  fiir  Belgien;  Handbuch 

fiir  die  Losung  der  hauptsachlichsten  Rechtsfragen.     2.  aufl.     Briissel, 

[1910]. 
De  la  valour  et  de  I'effet  des  actes  passes  en  pays  Stranger,  d'apres  la  legislation 

beige,  par  E.  Picard.     (8  Clunet,  1881,  461-494.) 

Courts— Jurisdiction  of  Aliens. 

Paepe,  P.    Etudes  sur  la  competence  civile  a  I'egard  des  etrangers.    Bruxelles, 

1900-1902.    2v. 
De  la  competence  des  tribunaux  beiges  relativement  aux  Strangers,  par   F. 

Laurent.     (4  Clunet,  1877,  496-511.) 
fitude  sur  la  Convention  Franco-Beige  du  8  juillet  1899,  par  Maurice  Bernard. 

(27  Clunet,  1900,  940-947.) 

Expulsion. 

Expulsion,  fitranger  marie  a  une  beige.  Enfants  n4s  en  Belgique.  Dissolu- 
tion du  mariage.  Divorce.  Loi  du  12  fevrier  1897.  (7  R.  D.  L  priv6,  1911, 
411-417.) 


878  APPENDIX 

Foreign  Corporations. 

De  la  situation  legale  dea  soci^tds  ^trang^rea  en   Belgique,  par  P.  Namur. 

(4  Clunct,  1877,  381-388.) 
De  la  condition  legale  des  societes  ^trang^res  en  Belgique,  par  Jules  Guillery. 

(10  Clunet,  1883,  225-239.) 
Lea  societes  anonyraes  etrangeres  en  Belgique,  par  Raymond  Maignien.     (3  Rev. 

int.  des  assurances,  59.) 
Capacite  civile  des  corporations  etrangeres,  d'apres  le  projet  de  revision  du 

Code    Napoleon   soumis   aux    chambres   beiges,    par    A.     Van    Bcrchem. 

(21  R.  D.  I.  1889,  5-18.) 
Poullet,  Pr.     De  la  situation  legale  en  Belgique  des  personnes  morales  dtrang^res. 

Louvain,  1902.     (Extrait  de  la  Repertoire  menauelle  de  la  jurisprudence 

beige,  1902.) 
La  condition  des  personnes  morales  etrangeres  d'apres  la  jurisprudence  beige, 

par  Prosper  Poullet.     (31  Clunet,  1904,  820-832.) 

Foreign  Judgments. 

De  I'autorite  et  de  I'execution  des  jugements,  des  sentences  arbitrales  et  des 
actes  judiciaires,  suivant  la  convention  franco-beige  du  8  juillet  1899,  par 
P.  de  Paepe.    (32  Clunet,  1905,  530-538;  33  Clunet,  1906,  318-332.) 

Du  sens  de  1' expression  "Decision  passee  en  force  de  chose  jugee"  en  matiere 
d'execution  des  jugements  etrangers  en  Belgique.  (36  Clunet,  1909,  1034- 
1038.) 

Industrial  and  Literary  Property. 

Des  droits  des  etrangers  en  Belgique,  en  matiSre  de  marques  de  fabrique  et  de 

commerce,  et  de  nom  commercial,  par  Alexandre  Braun.    (8  Clunet,  1881, 

386-407.) 
Situation  des  Strangers  devant  la  loi  beige  en  matiere  de  dessins  et  modules 

induatriels,  par  Lionel  Anspach  et  Daniel  Coppieters.    (34  Clunet,  1907, 

86-90.) 
Les  droits  des  auteurs  et  des  artistes  etrangers  en  Belgique,  par  Jules  de  Borch- 

grave.    (14  Clunet,  1887,  403-417.) 

Poor  Relief,  etc. 

L'assistance  judiciaire  gratuite  des  etrangers  et  la  convention  du  31  octobre 
1892,  entre  la  Belgique  et  les  Pays-Bas,  par  Charles  Daniel  Asaer.  (26 
R.  D.  L  1894,  331-334.) 

Succession. 

Law  of  Belgium,  May  20,  1837,  relative  to  international  reciprocity  in  relieving 
aliens  from  the  duty  on  successions.    (26  St.  Pap.  1837-1838,  808) . 

BULGARIA 

lanchev,  Naum  L     (Yantcheff.)     La  Bulgarie  et    I'^tranger.     Paris,  1892. 
Caleb,   Raphel.     Die   Konsulargerichtsbarkeit   in   Bulgarian  auf  Grund  der 
Capitulationen  mit  der  Tilrkei.     Strassburg  i.  E.,  1903. 


APPENDIX  879 

CHINA 

Aliens  in  General. 

Koo,  Vi  Kyuin  Wellington.    The  status  of  aliens  in  China.    New  York,  1912. 
Bandez,  M.     Essai  eur  la  condition  juridique  dee  Strangers  en  Chine.     Paris, 

1913  (thesis). 
The  government  of  the  foreigners  in  China,  by  A.  M.  Latter.     (19  Law  Quar. 

Rev.  1903,  316-325). 
De  la  condition  juridique  des  Strangers  en  Chine,  par  A.  Dauge.     (32  Clunet, 

1905,  850-859.) 
Condition  des  etrangers  en  Chine.     Historique.     Situation  actuelle.     Cours 

mixtes.    Par  Ton  Fa  Scie.    (2  R.  D.  I.  prive,  1906,  110-120.) 
Rights  of  foreigners  in  Peking.     (For.  Rel.,  1903,  119-122.) 
Right  of  Americans  to  reside  and  engage  in  business  in  the  restricted  parts  of 

Soochow  and  Hangchow.    (For.  Rel.,  1897,  69-80.) 
Regulations  concerning  foreign  settlement  at  Chinnampo  and  Mokpo.    Octo- 
ber 16,  1897.    (91  St.  Pap.,  1898-9,  1177-1185.) 
Protection  of  foreigners.    (For.  Rel.,  1894,  127-134.) 
Decree  of  July  17,  1900  in  re  protection  of  foreigners.     (94  St.  Pap.,  1900-01, 

1152-53.) 
Decree  re  responsibility  of  local  officials.     December  24,  1900;   February  1, 

1901.     (94  St.  Pap.,  1900-01,  708-9.) 
Regulation  re  foreign  settlements  at  Shanghai  1866-1869  (Land).     (90  St.  Pap., 

1897,  970-1001.) 
Same.     June  3,  1899.    (91  St.  Pap.,  1898-9,  1198-1201.) 
De  la  condition  juridique  des  etrangers  en  Chine  dans  leurs  contestations  avec 

les  chinois.     Reformes  nccessaires.     Par  M.  W.  Tondon.     (8  Nouv.  rev. 

prat,  de  dr.  int.  prive,  1912,  1-11.) 
Proposed  regulations  for   foreigners  traveling   in  China.     (For.   Rel.,    1894, 

152-160.) 
Die  Organisation  des  Fremdhandels  in  China,  von  Herman  Schumacher.     (23 

Jahrbuch  fur  Gesetzgebung,  1899,  657-691). 
Taxation  of  goods  manufactured  by  foreigners  in  China.     (For.  Rel.,   1896, 

97-8.) 
The  Chinese  nationality  law,  1909.     By  Tsai  Chutung.     (4  A.  J.  L  L.  1910, 

404-411.) 
Ein  chinesisches  Staatsangehorigkeitsgesetz,  von  Heinrich  Betz.     (5  Blatt.  f. 

vergl.  Rechtswissenschaft,  1909,  129-134.) 

Courts — Jurisdiction  of  Aliens. 

Memorandum  in  regard  to  the  jurisdiction  of  American  consular  officers  in  China 
over  offenses  against  morality  and  decency.  [Washington,  1906.]  (By 
James  Brown  Scott.) 

Chinese  court  bill.  Hearings  before  the  Committee  on  Foreign  Affairs,  House 
of  Representatives  [March  11,  1908].     Washington,  1908. 

Francis,  John  J.  The  "Hankow"  case.  Should  the  British  consul  have  ar- 
rested Dias.    Opinion  of  Mr.  Francis.    Hongkong,  1883. 


880  APPENDIX 

Order  in  Council  re  suits  by  or  against  foreigners,    August  3,  1886.     British 

jurisdiction,    ill  St.  Pap.,  1885-6,  987-988.) 
Extraterritoriality  in  China  by  F.  E.  Hinckley.     30  Annals  of  Am.  Acad.  97. 

CONGO 

^ens  in  General. 

Decree   concerning   foreigners,    February   20,    1891.     (83   St.   Pap.,    1890-91, 

1022-1023.) 
Le  Congo  Beige,  par  Paul  Errera.     (25  Rev.  dr.  pub.  1908,  744-747.) 
Des  6trangers  et  de  I'application  des  lois.     (18  Clunet,  1891,  671-673.) 
Les  etrangers  et  I'application  des  lois  dans  I'etat  independant  du  Congo,  par 

Maurice  Vauthier.    (Rev.  prat.  dr.  int.  priv6, 1890-91,  pt.  2, 179-185.) 

Expulsion. 

Decree  of  the  government  of  the  Congo  Free  State  on  the  subject  of  expulsion 
from  its  territories.  Brussels,  September  15,  1889.  (95  St.  Pap.,  1901- 
02,  117.) 

DENMARK 

General  Works. 

Synnestvedt,  Magnus.     Le  droit  international  priv6  de  la  Scandinavie.    Paris, 

1904. 
Federspiel,  Holger.     Den  Internationale  privatret  i  Denmark,  Almindelig  del. 

Kjbbenhavn,  1909. 

Aliens  in  General. 

La  situation  des  etrangers  en  Danemark,  par  Egmont  Andersen.  (2  Nouv.  rev. 
prat,  de  dr.  int.  priv6,  1906,  241-245.) 

Condition  jiu-idique  des  etrangers.  Droits  civils.  Conflit  de  lois.  Obliga- 
tions. Locus  regit  actum.  Mariage.  Successions  et  testaments.  (EI6- 
ments  de  droit  civil  scandinave,  par  Em.  Lehr.  Paris,  1901.)  (28  Clunet, 
1901,  197-198.) 

Law  re  supervision  of  foreigners  and  travellers.  May  15,  1875.  (74  St.  Pap., 
1882-83,  1058-1064.) 

Le  traite  franco-danois  du  9  fevrier  1910  et  I'admission,  par  traite,  des  etrangers 
a  la  jouissance  des  droits  civils,  par  C.  Jordan.  (6  R.  D.  I.  prive,  1910, 
1036-1038.) 

Droits  des  etrangers.  Nationality.  (Elements  de  droit  civil  scandinave,  par 
E.  Lehr,  1901.)    (28  Clunet,  1901,  874-875.) 

Expulsion. 

Expulsion  of  Mormon  missionaries.     (For.  Rel.,  1900,  413-422.) 

Foreign  Corporations. 

De  la  situation  legale  des  soci6t68  dtrang^ros  au  Danemark,  par  A.  Hindeaburs. 
(11  Clunet,  1884,  35-39.) 


APPENDIX  881 

Foreign  Judgments. 

De  rexecution  des  jugements  Strangers  en  Danemark,  par  Goos.     (7  CJunet, 
1880,  368-372.) 

Guardianship. 

Tutelle.     Etrangers.    (Elements  de  droit  civil  scandinave,  par  Ern.  Lehr,  1901.) 
(28  Clunet,  1901,  612.) 

Succession. 

Droits  des  etrangers.     Succession.     Droit  d'heriter.    (Elements  de  droit  civil 

scandinave,  par  E.  Lehr,  1901.)    (28  Clunet,  1901,  875.) 
See  also  Norway  and  Sweden. 

EGYPT 

Aliens  in  General. 

Scott,  James  Harry.     The  law  affecting  foreigners  in  Egypt.    Edinburgh,  1907. 
Lamba,   Henri.     De  revolution  de  la  condition  juridique  des  Europeens   en 

Egypte.    Paris,  1896. 
Laget,  L.     De  la  condition  juridique  des  etrangers  en  Egypte.    Paris,  1890. 
Bahi  ed-  Din  Barakat.     Des  privileges  et  inimunites  dont  jouissent  les  etrangers 

en  Egypte  vis-a-vis  des  autorites  locales.     Paris,  1912.     (Doctor's  thesis.) 
De  la  condition  juridique  des  etrangers  en  Egypte,  par  Henri  Lamba.     (37 

Clunet,  1910,  421-436,  1077-84.) 
Decree  of  April  11,  1886,  as  to  house  tax  and  its  application  to  foreigners. 

(77  St.  Pap.,  1885-86,  814-815.) 

Foreign  Corporations. 

Foreign  companies  in  Egypt,  by  F.  R.  Sanderson.     (25th  Rep.  Int.  Law  Asso., 

1908,  pp.  536-546;  21  Jurid.  Rev.,  1909-10,  1-16.) 
Les  societes  anonymes  etrangeres  en  Egypte  et  la  jurisprudence  mixte,  par 

Pierre  Arminjon.  (4  R.  D.  I.  prive,  1908,  722-781.) 
De  la  situation  des  societes  etrangeres  en  Egypte,  par  Malcolm  Mcllwraith. 

(38  Clunet,  1911,  1116-1129.) 

FRANCE 

General  Works. 

Weiss,  Andre.     Manuel  de  droit  international  prive.    6.  ed.    Paris,  1909. 

Weiss,  Andre.  Traite  theorique  et  pratique  de  droit  international  priv6.  2.  ed. 
Paris,  1907-1913.    Vols.  1-6. 

Despagnet,  Frantz  C.  R.  Precis  de  droit  international  priv6.  5.  ed.  Paris, 
1909. 

Surville,  Fernand  and  Arthujs,  Frangois.  Cours  61ementaire  de  droit  interna- 
tional prive.    5.  6d.    Paris,  1910. 

Pillet,  A.     Principes  de  droit  international  prive.    Paris,  1903. 

Lain6,  A.     Introduction  au  droit  international  prive.    Paris,  1888-1892.    2  T, 

Durand,  Louis.     Essai  de  droit  international  prive.    Paris,  1884. 


882  APPENDIX 

Audinet,  EugSne.     Principes  ^lementaires  du  droit  international  priv6.    2.  ^d. 

Paris,  1906. 
Valery,  Jules.     Manuel  de  droit  international  prive.    Paris,  1914. 
Vincent,  Rene  and  Penaud,  fidouard.     Dictionnaire  de  droit  international  priv6. 

Paris,  1888. 
Same.     Revue  de  l'ann6e  1888.    Paris,  1889. 
Same.     Revue  de  I'annee  1889.    Paris,  1890. 
La  Broue  de  Vareilles-Sommieres,  Gabriel.     La  synthese  du  droit  international 

prive.    Paris  [1897].    2  v. 
Foelix,  Jean  J.  G.     Traite  du  droit  international  priv6.     3.  6d.  par  Charles 

Demangeat.    Paris,  1856.    2  v. 
Masse,  Gabriel.     Le  droit  commercial  dans  ses  rapports  avec  le  droit  des  gens 

et  le  droit  civil.    2.  6d.    Paris,  1861-1862.    4  v.    3rd  ed.,  1874.    4  v. 

Aliens  in  General. 

Gaschon,  J.   B.     Code  diplomatique  des  aubains,  ou  du  droit  conventionnel 

entre  la  France  et  les  autres  puissances.    Paris,  1818. 
Legat,  B.  J,     Code  des  etrangers.     Paris,  1832. 
Sapey,  C.  A.     Les  etrangers  en  France  sous  I'ancien  et  le  nouveau  droit.     Paris, 

1843. 
Demangeat,  Charles.     Histoire  de  la  condition  civile  des  etrangers  en  France 

dans  I'ancien  et  dans  le  nouveau  droit.     Paris,  1844. 
Gand,  M.     Code  des  6trangers.     Paris,  1853. 

Royer,  Paul  de.     De  la  condition  civile  des  etrangers.     Paris,  1874. 
Aicard,  Albert.     De  la  condition  civile  des  etrangers  en  France  et  dans  quelques 

autres  6tats.     Marseille,  1878. 
Folleville,  D.     De  la  condition  juridique  des  etrangers  en  France.     Paris,  1880. 
Garnot,  N.     Apergu  sur  la  condition  des  6trangers  a  Rome,  et  condition  de 

I'etranger  sous  le  droit  public  frangais.     Paris,  1885. 
Durand,  J.     Des  etrangers  devant  la  loi  frangaise.     Paris,  1890. 
Brunet,  Gaston.     Les  etrangers  en  France.     Paris,  1898.     Vol.  1. 
Andreani,  A.     La  condition  des  etrangers  en  France  et  la  legislation  sur  la 

nationalite  frangaise.     2.  ed.     Paris,  1906. 
Voland,  Pierre  and  Beck,  Leon.     Manuel  pratique  de  la  condition  des  etrangers 

et  de  legislation  etrangere  (droit  civil,  procedure  et  commerce).    Paris,  1914. 
Rights  of  aliens  in  France.     (Appendix  to  Morse,  Alexander  P.    A  treatise  on 

citizenship.     Boston,  1881,  pp.  328-32.) 
Sewell,  J.  T.  B.     An  outline  of  French  law  as  affecting  British  subjects.    London, 

1897. 
Browne,  Arthur  S.     French  law  and  customs  for  the  Anglo-Saxon.     2d    ed. 

London, 1907. 
Lescoeur,  Ch.     La  condition  legale  des  etrangers  ot  particulierement  des  Alle- 

mands  en  France.     Paris,  1898. 
Das  franzbsische  Fremdenrecht  unter  besonderer  Berucksichtigung  der  Recht- 

stellung  der  Deutschen,  von  Otto  Mayr.     (Annalcn  des  Deutschen  Reichs, 

1896,  329-376.) 
La  situation  des  6trangcr8  en  France  (Communication  faite  a  la  Socidt6  catho- 


APPENDIX  883 

lique  d'^conomie  sociale  de  Lyon),  par  Joanny  Pey.    (12  N.  S.,  Rev.  cath. 

des  institutions,  1894,  140-155,  195-213.) 
Condition  des  etrangers  en  France,  par  Barrillet.     (15  Rev,  pratique,  545; 

16  Rev.  pratique,  551.) 
Condition  legale  des  etrangers  en  France,  par  Victor  Hennequin.     (3  Rev.  de 

leg.,  1852,  72-103.) 
Meinoire  sur  la  condition  civile  des  etrangers  en  France,  par  E.  Glasson.     (C. 

rendue  Acad,  de  science  morale  et  polit.,  April,  1904.) 
Divers  asjiects  de  la  condition  civile  des  Strangers  en  France,  par  E.  Glasson. 

(34  Clunet,  1907,  593-602.) 
Condition  des  etrangers  en  France.     (6  R.  D.  I.  prive,  1910,  623-634.) 
Boutry,  J.     Les  fran^ais  et  les  etrangers  devant  la  loi  franr.-aise  (explication 

des  Art.  7  a  22  du  Code  Civil).     Paris,  1872. 
Law  relating  to  the  sojourn  of  foreigners  in  France  and  to  the  protection  of 

national  labor.     August  8,  1893.     (For.  Rel.,  1893,  302-304;  85  St.  Pap., 

1892,  838-844.) 

De  la  condition  des  nomades  de  nationality  etrangere  dans  la  nouvelle  legisla- 
tion fran^aise,  by  Felix  Challier.     (41  Clunet,  1914,  1169-1185.) 

S4jour  des  etrangers  non  admis  a  domicile  en  France.  Loi  du  8  aout,  1893. 
Examen  doctrinal.  Par  F.  Surville.  (25  N.  S.,  Rev.  critique,  1896,  213- 
219.) 

Sejour  des  etrangers  en  France.     Decret  du  2  octobre  1888  et  loi  du  8  aout 

1893.  Examen  doctrinal.     Par  F.  Surville.     (24  N.  S.,  Rev.  crit.  de  leg. 
et  de  juris.,  1895,  65-72.) 

Notes  pratiques  sur  les  conditions  de  sejour  et  de  residence  des  etrangers  en 

France  (Decret  du  2  octobre  1888),  par  Jules  Durand.     (16  Clunet,  1889, 

515-528.) 
Die  Lage  der  Auslander  in  Frankreich  auf  Grund  des  neuen  Gesetzes  vom  8 

August  1893,  betreffend  den  Aufenthalt  der  Auslander  in  Frankreich  und 

den  Schutz  der  inlandischen  Arbeit,  von  Otto  Mayr.     (4  Ztschr.  f .  int.  Pr.  u. 

Strafrecht,  1894,  433-446.) 
De  la  police  des  etrangers  en  France,  par  Charles  Bertheau.     (14  Clunet,  1887, 

583-587.) 
Barrier,  A.     La  police  des  etrangers  en  France  et  la  taxe  de  sejour.     Paris,  1899. 
De  la  condition  des  etrangers  en  France  au  point  de  vue  de  la  residence  et  de  la 

profession,  par  Maurice  Henriet.     (23  Clunet,  1896,  261-283,  502-515.) 
De  la  situation  des  etrangers  en  France  dans  le  projet  de  loi  sur  le  bien  de  famille 

insaisissable,  par  Jean  Richard.     (5  Nouv.  rev.  prat,  de  dr.  int.  prive,  1909, 

97-99.) 
Les  droits  de  I'etat  et  les  droits  de  I'immigrant  etranger,  par  Charles  Turgeon. 

(2  Rev.  dr.  pub.,  1894,  389-423.) 
Du  droit  des  etrangers  en  France  sur  leur  nom  et  leur  titre  nobliaire,  par  E. 

H.  Perreau.     (37  Clunet,  1910,  1025-35.) 
Condition  des  etrangers  en  France.     Contrainte  par  corps.     Loi  du  22  juillet 

1867.     Examen  doctrinal  de  jurisprudence,  par  F.  Surville.     (27  N.  S., 

Rev.  crit.  de  16g.  et  de  juris.,  1898,  280-283.) 
De  la  validite  des  contrats  passing  en  France  par  un  etranger  incapable  d'aprSs 


884  APPENDIX 

sa  loi  nationale,  mais  capable  d'apr^s  la  loi  frangaise,  par  F.  Surville.     (36 

Clunet,  1909,  625-640.) 
De  la  condition  juridique  des  " Heimathlosen "  ou  "Sans  Patrie"  en  France,  par 

Ernest  Lemonon.     (37  Clunet,  1910,  403-407.) 
De  la  condition  des  etrangers  en  France  relativement  a  I'interdiction  et  au 

conseil  judiciaire,  par  E.  Simon- Auteroche.     (1  Nouv.  rev.  prat,  de  dr.  int. 

prive,  1905,  389-404.) 
De  la  dation  d'un  conseil  judiciaire  a  un  etranger  en  France,  par  Paul  Toumade. 

(22  Clunet,  1895,  484-500.) 
La  concession  diplomatique  des  droits  civils  aux  etrangers  en  France  et  le  traite 

franco-danois  du  9  fevrier  1910,  par  C.  Jordan.     (6  R.  D.  I.  priv6,  1910, 

1036-1038.) 

Admission  to  Domicil  and  Naturalization. 

L'admission  a  domicile  des  etrangers  en  France  et  la  loi  du  26  juin  1889  sur 
la  nationality,  par  Andr^  Weiss.     (26  Clunet,  1899,  5-16.) 

L'Ebraly,  Ch.  De  l'admission  a  domicile  et  des  droits  qu'elle  confere  a  I'etran- 
ger  qui  I'obtient.     Paris,  1898. 

La  loi  du  24  juillet  1889,  son  caractere  au  point  de  vue  International,  par  F. 
Surville.     (28  N.  S.,  Rev.  crit.  de  leg.  et  de  juris,  1899,  219-222.) 

De  l'admission  a  domicile  consideree  comme  condition  preliminaire  de  la  naturali- 
sation, par  Arm.  Pignon.     (4  Rev.  gen.  du  dr.,  1880,  119-131,  240-247.) 

Sauvagnac,  M.     A  practical  guide  to  naturalization  in  France.    London,  1909. 

Sauvagnac,  M.  Praktischer  Wegweiser  fiir  die  Naturalisation  in  Frankreich. 
Berlin,  1910. 

Naturalisation  d'un  etranger  en  France.  (Cogordan,  George.  Droit  des  gens. 
La  natioralite  au  point  de  vue  des  rapports  internationaux.  2.  6d.  Paris, 
1890.     pp.  117-170.) 

Courts — Jurisdiction  of  Aliens. 

Weiss,  A.     Traite,  supra,     2nd  ed.,  v.  5  and  6.     L'etranger  et  la  justice.    Paris, 

1913,  particularly,  v.  5,  p.  1  el  seq. 
Jurisdiction  in  actions  between  foreigners,  by  A.  Pillet.     (18  Harvard  L.  Rev., 

1904-5,  325-340.) 
Bonfils,  H.     De  la  competence  des  tribunaux  frangais  a  I'egard  des  etrangers. 

Paris,  1865. 
Bernard,   Maurice.     De  la  competence  des  tribunaux  frangais  a  I'egard  des 

etrangers  et  de  I'execution  des  jugements  etrangers  en  France.     Paris,  1900. 
De  la  competence  des  tribunaux  frangais  dans  les  contestations  entre  etrangera, 

par  Ch.  Demangeat.     (4  Clunet,  1877,  109-113.) 
De  la  c(nnpetence  des  tribvmaux  frangais  entre  Strangers,  par  E.  Glasson.     (8 

Clunet,  1881,  10.5-133.) 
De  la  competence  des  tribunaux  frangais  pour  connaitre  des  contestations  ejitre 

etrangers,  par  L.  J.  D.  Feraud-Giraud.     (7  Clunet,  1880,  137-173,  225-244.) 
La  demande  en  justice,  envisag^e  dans  les  rapports  de  la  France,  avec  les  pays 

strangers,  par  Jules  Valery.     (3  R.   D.   L   priv6,    1907,  5-24,   699-714.) 
Examen  compar6  des  jurisprudences  frangaise  et  anglo-am^ricaine  en  matiere 


APPPJNDIX  885 

de  competence  dans  les  litiges  entre  Strangers,  par  A.     Pillet.     (I  R.  D.  I. 

priv6,  1905,  61-70,  434-442.) 
British  suitors  in  French  courts,  by  M.  J.  Farreiiy.     (98  Law  Times,  199-200.) 
De  la  competence  des  tribunaux  frangais  dans  les  contestations  entre  6tranger3 

en  matiere  commercialc,  par  Ch.  Deraangeat.     (9  Clunet,  1882,  288-291.) 
De  la  competence  des  tribunaux  frangais  pour  connaitre  des  contestations  entre 

epoux  etrangers,  par  Feraud-Giraud.     (12  Clunet,  1885,  225-249,  375-396.). 
De  la  competence  des  tribunaux  frangais  en  matiere  de  delits  cominis  sur  un 

navire  etranger,  par  Edinond  Alix.     (5  Nouv.  rev.  prat,  de  dr.  int.  priv6, 

1909,  14'>-151.) 
De  la  competence  des  tribunaux  frangais  en  cas  d'abordage  entre  navires  Stran- 
gers, par  Paul  Turgeon.     (22  Rev.  int.  du  dr.  maritime,  245-256.) 
De  la  competence  des  tribunaux  frangais  a  I'egard  des  etrangers,  d'apres  le 

projet  de  reforme  du  Code  de  procedure  civile,  par  Maurice  Moutier.     (20 

Clunet,  1893,  331-343.) 
De  la  competence  des  tribunaux  frangais  a  I'egard  des  etrangers  en  matidre 

d'etat  des  personnes,  par  Leon  Ledoux.     (33  Clunet,  1906,  722-743.) 
De  la  saisie-arret  pratiquee  en  France  par  un  etranger  sur  un  Frangais,  par 

Clunet.     (9  Clunet,  1882,  55-61.) 
See  also  Foreign  Judgments. 

Security  for  Costs. 
Caution  judicatum  solvi.     Loi  du  5  mars  1895  (Examen  doctrinal  de  jurispru- 
dence), par  F.  Surville.     (27  N.  S.  Rev.  crit.  de  16g.  et  de  juris.,  1898,  277- 
280.) 

Expulsion. 

Martini,  A.     L'expulsion  des  etrangers.     Paris,  1909. 
Pascaud,  L.     De  l'expulsion  des  etrangers  en  France.     Paris,  1889. 
Cugnin,  Robert.     L'expulsion  des  etrangers.     Nancy,  1912  (doctor's  thesis). 
RSglementation  de  l'expulsion  des  etrangers  en  France,  par  Feraud-Giraud. 

(17  Clunet,  1890,  414-428.) 
Das  Ausweisungsverfahren  in  Frankreich,  von  G.  Horn.     (0  Blatt.  f.  vergl. 

Rechtswissenschaft,  1911,  261-68.) 
La  loi  de  1849  et  l'expulsion  des  etrangers,  par  A.  Desjardins.     (3  periode, 

50  Rev.  des  Deux-Mondes,  1882,  657-680.) 
Du  recours  contentieux  en  matiere  d'expulsion  des  etrangers  en  France,  par  H. 

De  Lalande.     (2  Rev.  prat.  dr.  int.  prive,  1892,  59.) 
De  l'expulsion  des  etrangers  appeles  a  devenir  Frangais  par  le  bienfait  de  la 

loi,  par  A.  Laine.     (24  Clunet,  1897,  449-466;  701-720;  963-985;  25  Clunet, 

57-73;  675-698.) 
De  la  poursuite  pour  infraction  a  un  arrete    d'expulsion    dirigee  centre  une 

personne  precedement  acquitee  de  ce  chef,  au  cours  du  meme  sejour  en 

France,  par  Raymond  Hubert.     (26  Clunet,  1899,  724-730.) 
De  l'expulsion  des  enfants  d'etrangers  nes  en  France,  dans  le  dernier  6tat  de 

la  jurisprudence.     La  loi  du  22  juillet   1910.)     Par  Raymond  Hubert. 

(7  R.  D.  I.  priv6,  1911,  184-86.) 


886  APPENDIX 

France.  Expulsion  des  dtrangers.  L'expulsion  de  la  Martinique  de  M.  Castro. 
(16  R.  G.  D.  I.  P.,  1909,  373-76.) 

Extraterritorial  Crime. 

Loi  du  3  avril  1903  modifiant  les  Arts.  334-35  du  Code  penal,  4  de  la  loi  du  27 
niai  188.5  et  5  et  7  du  Code  d'instruction  criminelle.  (Journ.  officiel  du  4 
avril  1903.)     (Clunet,  Tables  generales,  Vol.  2,  pp.  1082-84.) 

Foreign  Corporations. 

Rousseau,   R.     Des  societes  commerciales  fran^aises  et  etrangeres,   4th  ed. 

Paris,  1912.     2  v. 
Deloison,  G.     Traite  des  societes  commerciales  frangaises  et  etrangeres.    Paris, 

1882.     2  V. 
Lyon-Caen,  Ch.     De  la  condition  legale  des  societes  etrangeres  en  France  et 

de  leurs  rapports  avec  leurs  actionnaires,  porteurs  d'obligations  et  autres 

creanciers.     Paris,  1870. 
Adolph,  Lucien.     Manuel  pratique  des  societes  anonymes  etrangeres.     Paris, 

1913. 
Boullay.     De  la  condition  juridique  des  societes  etrangeres  en  France.     Paris, 

1899  (doctor's  thesis). 
Barclay,  T.     Companies  in  France.     The  law  relating  to  British  companies  and 

securities  in  France,  and  the  formation  of  French  companies.     London, 

1899. 
Societes  Etrangeres.     Tableau  alphabetique  des  Pays  dont  les  societes  commer- 
ciales sont  autorisees  en  France,  par  R.  N.  (38  Clunet,  1911,  507-9.) 
La  condition  legale  des  societes  etrangeres  par  actions  en  France  et  en  Autriche, 

par  Ch.  Lyon-Cean.     (4  Rev.  de  leg.,  1874,  335,  350.) 
De  la  situation  faite  en  France  aux  societes  etrangeres  par  revolution  des  legis- 
lations europeennes  vers  la  Uberte  de  I'anonymat,  par  Ed.  Thaller.     ( 1881 

Journal  des  societes,  50,  106,  312.) 
Condition  legale  des  societes  etrangeres  en  France,  par  L.  Beauchet.     (Gazette 

du  Palais,  29  mai,  6  et  25  juin,  10  juillet  1886.) 
De  la  situation  a  faire  aux  societes  anonymes  etrangeres.     (15  Ann.  dr.  comm.  et 

industrielle,  1901,  111-116.) 
Die  Rechstellung  auslandischer  Handelsgesellschaften  in  Frankreich,  von  Dr. 

Schauer.     (1912-13  Jahrb.  f.  d.  int.  Rechtsverkehr,  195-201.) 
Des  divers  systemes  legislatifs  concernant  la  condition  legale  des  societes  etran- 
geres par  actions  et  des  reforines  a  apporter  a  la  legislation  Franq-aise,  par 

Ch.  Lyon-Caen.     (12  Chmet,  1885,  26.5-274.) 
De  la  condition  des  societes  etrangeres  en  France  dans  le  projct  de  loi  sur  les 

societes  i)ar  actions,  par  Ambroisc  Buchere.     (10  Clunet,  18S3,  479-494.) 
De  la  situation  fiscale  des  societes  etrangeres  (jui  ont  j)our  objet  des  biens  situes 

en  France,  par  Albert  Wahl.     (35  Clunet,  1908,  961-988;  36  Clunet,  1909, 

37-47.) 
De  la  nationalite  et  de  la  denationalisation  en  France  des  societes  par  actions, 

par  Henri  LavoU^e.     (6  Nouv.  rev.  prat,  de  dr.  int.  priv6,  1910,  373-385, 

421-429.) 


APPENDIX  887 

De  la  condition  legale  en  France  des  soci^t^s  ^trang^rea  d'asaurances  sur  la  vie. 

(3  R.  D.  I.  priv6,  1907,  85-113.) 
Condition  juridique  des  compagnies  etrangeres  d'assurancea  aur  la  vie  en  France, 

par.  J.  Lefort.     (1890  Recueil  period,  des  a.ssurancea,  G8.) 
Les  societe.s  etrangeres  d'assurances  .sur  la  vie,  par  .Alfred  de  Courcy.     (12  N.  S. 

Rev.  erit.  de  leg.  et  de  juris,  1883,  118-135.) 
Des  actions  judiciaires  exercees  en  France  par  les  societes  anonymea  etrangeres, 

par  .Amb.  Buch^re.     (9  Clunet,  1883,  37-54.) 
Du  droit  pour  les  societes  commerciales  6trangeres  d'ester  en  justice  en  France, 

par  Maurice  Moutier.     (21  Clunet,  1894,  954-978.) 
Du  droit  pour  les  associations  etrangeres  d'ester  en  justice  en  France,  par  Hubert- 

Valleroux.     (33  Clunet,  1906,  628-633.) 
De  la  capacite  en  France  des  personnes  morales  etrangeres  et  en  particulier  du 

Saint-Siege,  par  L.  Michoud.     (1  R.  0.  D.  I.  P.,  1894,  193-221.) 

Foreign  Judgments. 

De  I'execution  des  jugements  etrangers  en  France,  par  Christian  Daguin.     (15 

Clunet,  1888,  33-42;  16  Clunet,  1889,  39-59.) 
De  quelques  difficultes  en  matiere  d'execution  des  jugements  etrangers  en 

France.     (9  Clunet,  1882,  166-174.) 

Guardianship,  etc. 

Interpretation  de  I'Art.  11,  Code  Civil.  Droit  pour  les  etrangers  d'exercer 
en  France  les  fonctions  de  tutelle,  par  F.  Surville.  (28  N.  S.  Rev.  crit.  de 
Mg.  et  de  juris.,  1899,  222-224.) 

Un  etranger  peut-il  faire  partie  d'un  conseil  de  famille  en  France,  par  Paul  La- 
vollee.     (4  Nouv.  rev.  prat,  de  dr.  int.  prive,  1908,  150-158.) 

Industrial  Property. 

Les  marques  collectives  et  en  particulier  le  label  devant  la  loi  nationale  et  la  loi 

Internationale,  par  Barthelemy  Raynaud.    (7  R.  D.  I.  prive,  1911,  259-277.) 
Du  droit  des  etrangers  en  France  en  matiere  de  marques  de  fabrique,  par  Eug. 

Pouillet.     (18  Clunet,  1891,  60-^8.) 
De  la  situation  et  de  I'usage  en  France  des  marques  etrangeres  non  proteges 

par  des  lois  speciales,  par  Ludovic  Beauchet.     (17  Clunet,  1890,  429-437.) 
Dessins  de  fabrique.     Etranger  sans  ctablissement  en  France.     Non-receva- 

bilite  du  depot.    Citoyen  Suisse.     Convention  d'union  de  1883.     (45  Ann. 

propr.  industrielle,  1899,  139-153.) 
Droits  des  etrangers  en  France  en  matiere  de  marques  de  fabrique,  par  J.  Bozer- 

ian.     (17  Clunet,  1890,  193-204.) 

Marriage  and  Divorce. 

Laurent-Bailly.     Le  divorce  et  la  separation  de  corps  en  France  et  i  I'^tranger 

et  des  etrangers  en  France.     Paris,  1910. 
Mariage  exclusivement  religieux  celebre  en  France  entre  Strangers,  conforme- 

ment  a  leur  loi  nationale.     R^gle  locus  regit  actum.     Traits  de  La  Hay* 

du  12  juin  1902.     (34  Clunet,  1907,  93-102.) 


888  APPENDIX 

De  Tinfluence  de  la  Convention  de  La  Haye  du  12  juin  1902  sur  les  questions  de 

divorce  en  France  entre  6poux  de  nationality  diff^rente,  par  Alfred  Droz. 

(34  Clunet,  1907,  19-28.) 
Le  regime  l^gal  des  etrangers  maries  en  France  et  dee  Frangais  mari^s  a  I'^tran- 

ger.     (8  Bull,  de  la  Societe  d'^tudes  legislatives,  1909,  449-473.) 
Regime  legal  des  etrangers  maries  en  France  et  des  Fran^ais  maries  a  I'^tranger 

(Stances  de  Commission  des  10  et  21  decembre  1908).     5  R.  D.  I.  priv6, 

1909,  674-686.) 
De  la  combinaison  entre  la  theorie  du  renvoi  et  celle  de  I'autonomie  a  prcpos 

du  regime  matrimonial  des  epoux  maries  sans  contrat,  par  A.  Mazas.     (34 

Clunet,  1907,  603-611.) 
Commission  d'6tude  d'un  projet  de  loi  sur  le  regime  legal  des  etrangers  mari6s 

en  France  sans  contrat,  par  Louis  Cremieu.     (8  Bull,  de  la  Societe  d'etudes 

l<^gislatives,  1909,  235-236.) 
Le  mariage  et  le  divorce  confessionnels  des  etrangers  en  France,  par  G.  Cluzel. 

(36  Clunet,  1909,  5-37.) 
De  I'adultere  commis  en  France  par  des  epoux  etrangers,  par  Dumas.     (28 

Clunet,  1901,  912-917.) 
Prohibition  du  mariage  entre  beaux-freres  et  belles-soeurs  dans  la  nouvelle 

loi  frangaise  et  les  etrangers,  by  F.  Surville.     (41  Clunet,  1914,  1082- 

1088.) 
Separation  de  corps.     Competence  entre  etrangers.     Par  F.  Surville.     (23  N.  S., 

Rev.  crit.  de  l^g.  et  de  juris.,  1894,  264-266.) 

Military  Requisitions  and  Service. 

Les  etrangers  naturalises  Frangais  sont-ils  astreints  au  service  militaire?     (15 

Clunet,  1888,  376-378.) 
Service  militaire.     Conflit  des  lois  frangaises  et  americaines.     Affaires  Fruchier, 

Arbios,  Girard,  Gendrot,  Aubry,  Jacob.     (16  Clunet,  1889,  253-271.) 
Des  dispositions  de  la  nouvelle  loi  militaire  frangaise  qui  touchent  au  droit 

international,  par  Hambartroum  Arakelian  et  Jean  Dejamme.     (32  Clunet, 

1905,  612-628,  884-899.) 
Les  etrangers  en  France  et  les  requisitions  militaires.     (8  R.  D.  L  privd,  1912, 

840-845.) 

Poor  Relief,  etc. 

Les   etrangers   en    France,    au  point   de  vue  de  I'assistance  et  des  secours 

churitables,   par    H.    Dorouin    ot    F.    Worms.      (17    Clunet,    1890,   545- 

561.) 
Collier,  Louis.     Procedure  judiciaire  et  administrative.     L'assistance  judiciaire, 

(levant  toutes  les  juridictions.     Paris,  1909. 
Charliae,  G.     De  l'assistance  des  etrangers  indigenes  devant  les  tribunaux. 

Paris,  1906. 
L'assistance  judiciaire  et  les  etrangers  en  France  par  R.  de  Card.     (14  Clunet, 

1887,  273-279.) 
L'aasistance  judiciaire  et  les  etrangers  en  France.     (Rouard  de  Card.     Etudes 

de  droit  international,  Paris,  1890,  pp.  151-179.) 


APPENDIX  889 

De  I'aesistance  judiciaire  et  des  declarations  de  nationality,   par  Raymond 

Hubert.     (3  R.  D.  1.  priv6,  1907,  897-904.) 
Lee  Strangers  devant  les  lois  d'assistance  en  France,  by  B.  Raynaud.     (39  Clunet, 

1912,  689-698.) 

Practice  of  Professions. 

Jandin,  Bernard  de.     Des  professions  que  les  Strangers  peuvent  exercer  en 

France.     Paris,  1899. 
De  la  condition  legale  des  Strangers  en  France,  au  point  de  vue  de  I'exercice  dea 

professions  commerciales  ou  industrielles,  soit  comme  patrons,  soit  comme 

salaries,  p)ar  Paul  Pic.     (16  Rev.  d'econ.  pol.,  1902,  481-498.) 
Droits  des  medecins  etrangers  en  France,  par  E.  H.  Perreau.     (37  Clunet,  1910, 

21-35.) 
Admission  of  foreigners  to  French  medical  schools.     (New  regulations  reported 

by  Mr.  Vignaud.     (P^or.  Rel.,  1896,  140-141.) 
Admission  of  foreigners  to  French  government  schools.     (For.   Rel.,    1897, 

173-174.) 

Public  Instruction. 

Enseignement  en  France,  fitrangers.  Conditions.  (18  Clunet,  1891,  1056- 
1058.) 

Social  Insurance. 

De  I'indemnisation  des  ouvriers  Strangers  victimes  d'accidents  de  travail  d'apr^s 
la  loi  du  30  mars  1905,  par  Jules  Cabouat.  (3  Nouv.  rev.  prat,  de  dr.  int. 
priv6,  1907,  1-8,  49-63,  97-106.) 

Les  ouvriers  Strangers  en  France  et  les  accidents  du  travail,  par  F.  Surville. 
(34  N.  S.,  Rev.  crit.  de  leg.  et  de  juris.,  1905,  197-201.) 

De  la  condition  juridique  des  travailleurs  etrangers  en  France.  (Legislation 
actuelle,  projets  de  reforme.)  Par.  P.  Pic.  (32  Clunet,  1905,  273-284, 
860-872;  33  Clunet,  1906,  301-317.) 

Les  modifications  apportees  par  la  loi  du  31  mars  1905  relatives  aux  accidents 
du  travail  des  ouvriers  etrangers,  par  B.  Raynaud.  (32  Clunet,  1905, 
899-902.) 

Les  consequences  de  la  cessation  de  residence  en  France  d'un  ouvrier  etranger 
indcmnitaire  de  la  loi  sur  les  accidents  du  travail  (Art.  3,  No.  15,  de  la 
loi  du  9  a\Til  1898,  modifiee),  par  Eugene  Fron.  (5  Nouv.  rev.  prat,  de  dr. 
int.  prive,  1909,  99-107.) 

Les  retraites  ouvrieres  et  paysannes  et  les  etrangers  dans  la  nouvelle  legisla- 
tion frangaise,  by  B.  Raynaud.     (37  Clunet,  1910,  1036-1053.) 

Succession. 

Tourenq,  B.     De  la  succession  de  I'etranger  en  France  (droit  fiscal).     Toulouse, 

[1911]. 
De  la  succession  ab  intestat  des  etrangers  en  France  et  des  Frangais  a  I'etranger, 

par  Louis  Renault.     (2  Clunet,  1875,  329-345,  422-429;  3  Clunet,  1876, 

15-22.) 


890  APPENDIX 

Des  pouvoirs  de  certains  consuls  Strangers  en  mati^re  de  successions  laissdea 

en  France  par  leurs  nationaux,  par  Maurice  Ditte.     (36  Clunet,   1909, 

917-939.) 
L'origine  du  prelevement  en  faveur  des  h^ritiers  nationaux  a  I'encontre  dea 

h^ritiers  etrangers,  par  Paul  Fauchille.     (16  Clunet,  1889,  788-790.) 
De  la  forme  des  testaments  passes  par  des  Strangers,  par  Maurice  Colin.     (24 

Clunet,  1897,  928-944.) 

Taxation. 

Barbey,  G.     The  income  tax  bill  as  affecting  foreigners  in  France.     Paris,  1909. 
Mallard,  J.     Des  valeurs  mobili^res  6trang6res  en  France  au  point  de  vue  fiscal. 

Paris,  1906. 
Propper.    Du  regime  des  valeurs  etrangeres  en  France.    Paris,  1905. 
Le  nouveau  regime  fiscal  des  valeurs  etrangeres  en  France,  by  Albert  Wahl. 

(41  Clunet,  1914,  1088-1161.) 

French  Colonies 
Algeria  and  French  Africa. 

La  question  des  etrangers  en  Alg4rie,  par  Le  Myre  de  Viliers.     (6  Questions 

dip.,  1889,  65-70.) 
La  question  des  etrangers  en  Algerie,  par  Ernest  Mercier.     (Bulletin  de  la 

reunion  d'etudes  algeriennes,  1900.) 
La  question  des  etrangers  en  Algerie,  par  Louis  Paoli.     (52  Rev.  pol.  et  pari., 

1907,  304-331.) 
Etude  sur  la  condition  a  faire  aux  etrangers  etablis  en  Algerie,  par  J.  de  Lassalle. 

(Extrait  du  Bull,  des  sciences  economiques  et  sociales  du  Comite  des  travaux 

historiques  et  scientifiques,  1894.) 
La  situation  des  etrangers  en  Algerie,  par  V.  Demontes.     (Bull,  comite  afrique 

frangaise,  octobre  1905.) 
French  decree  of  February  7, 1894,  extending  to  Algeria  the  French  law  of  Aug.  8, 

1893,  regulating  the  sojourn  of  foreigners  in  France.     (86  St.  Pap.,  1893- 

94,  1028.) 
Asmis,   Dr.     La  condition  juridique  des  indigenes  dans  1' Afrique  occidental 

fran(,'aise.     Paris,  1910. 

French  Guiana. 

Legislation  sur  le  sejour  des  Itrangers.     (24  Clunet,  1897,  445-446.) 

Indo-China. 

La  condition  des  Strangers  en  Indo  Chine.     (7  R.  D.  I.  priv6,  1911,  209-210.) 

Tunis. 

Decree  concerning  foreigners  of  April  13,  1898.    (90  St.  Pap.,  1897-98,  954-956.) 
De  la  juridiction  des  tribunaux  frangais  en  Tunisie  et  de  leur  competence  i 

regard  des  etrangers,  par  Lenepveu  de  la  Font.     ( 10  Clunet,  1883,  437-446./ 
Da  regime  legal  fait  en  Tunisie  aux  Frangais  et  aux  etrangers  en  mati^re  de 

contentieux  administratif,  par  Henri  Por6e.     (16  Clunet,  1889,  223-226.) 


APPENDIX  891 

GERMANY 
General  Works. 

Savigny,  F.  G.     A  treatise  oa  the  conflict  of  laws,  translated  by  Wm.  Guthrie. 

London,  1880. 
Bar,    L.    v.     Theorie   u.    Praxis   des    internationalen    Privatrechts.     2.     aufl. 

Hannover,  1889.     2  v. 
Bar,  L.  v.     Lehrbuch  des  internationalen  Privat-  und  Strafrechts.    Stuttgart, 

1892. 
Bar,  L.  v.     Theory  and  practice  of  private  international  law,  translated  by 

G.  R.  Gillespie.     2.  ed.     Edinburgh,  1892. 
Zitelmann,  E.     Internationales  Privatrecht.     Leipzig,  1897-1912.     2  v. 
Zitelmann  E.     Artikel  7  bis  31  des  Einfiihrungsgesetzes  zum  B.  G.  B.     Leipzig, 

1908. 
Niemeyer,  Th.     Das  interuationale  Privatrecht  des  Burgerlichen  Gcsetzbuchs. 

Berlin,  1901. 
Barazetti,  C.     Das  Internationale  Privatrecht  im  B.  G.  B.     Hannover,  1897. 
Habicht,  H.      Internationales  Privatrecht  nach  dem  EinfUhrungsgesetze  zum 

B.  G.  B.     Berlin,  1907. 
Internationales  Privatrecht  auf  deutschrechtlicher  Grundlage,  von  Prof.  Xeu- 

becker.     (1912-13  Jahrb.  f.  d.  int.  Rechtsverkehr  8-120.) 

Aliens  in  General. 

Heinrichs,   A.     Deutsche  Niederlassungsvertrage  und   Ubernahmeabkommen. 

Berlin,  1908. 
Beutner,  W.     Die  Rechtsstellung  der  Auslander  nach  Titel  II  der  preussischen 

Verfassungsurkunde.     Tubingen,  1912. 
Zielke.     Die    Stellung    der    Ausliiuder    nach    dem    BUrgerlichen    Gesetzbuch. 

Naumberg,  1905.     (Halle,  doctor's  dissertation.) 
De  la  condition  juridique  des  etrangers  d'apres  les  lois  et  traites  en  vigueur 

sur  le  territoire  de  I'empire  d'AUemagae,  par  J.  Keidel.     (21  Clunet,  1894, 

72-89,  703-711.) 
Ausland,  Auslander,  by  Zorn  in  Stengel-Fleischmann's  Worterbuch  des  Staats- 

u  Verwaltungsrechts.  Tubingen,  1911,  I,  258  et  seq. 
Fremdenrecht  by  Lentner  in  Staatslexikon,  II,  4th  ed.  1911,  p.  333  et  seq. 
De  la  condition  legale  des  etrangers  en  Prusse,  par  Felix  Stoerk.     (10  Clunet, 

1883,  5-12.) 
De  la  situation  legale  des  enfants  d'etrangers  en  AUeraagne,  par  Dr.  Haenel. 

(11  Clunet,  1884,  477-482.) 
Le  droit  international  prive  dans  le  nouveau  code  civil  allemand,  par  J.  Keidel. 

(25  Clunet,  1898,  867-887;  26  Clunet,  1899,  17-47,  239-283.) 
Internationale  Rechtsfragen  in  den  deutschen  Handelsvertragen,  von  W.  Bor- 

gins.     (1912-13  Jahrb.  f.  d.  int.  Rechtsverkehr,  167-174.) 
De  la  police  des  Strangers  en  Allemagne,  par  F.  Boehm.  ( 16  Clunet,  1889,  21-23.) 

Civil  Procedure. 

Delius,    Hans.     Handbuch   des   Rechtshilfeverfahrens   im    Deutschen   Reiche 
sowie  im  und  gegenilber  dem  Auslande.     4.  aufl.     NUrnberg,  1911. 


892  APPENDIX 

Ersuchen  um  Rechtshilfe,  von  Willy  Peil.     (1912-13  Jahrb.  f.  d.  int.  Rechte- 

verkehr  448-497.) 
Des  biens  sis  en  AUemagne  appartenant  4  un  failli  Stranger,  par  Ch.  Kauffmann. 

(12  Clunet,  1885,  33-45.) 

Security  for  Costs. 

De  la  caution  judicatum  solvi  en  AUemagne,  par  Dr.  Drucker.     (20  Clunet. 
1893,  310-318.) 

Ezpiilsion. 

Lehmann,    M.     Die   Ausweisung  im   System   des  deutschen   Fremdenrechts. 

Gartz,  1898. 
Ausweisung  by  Fleischmann  in  Stengel-Fleischmann's  Wbrterbuch,  etc.,  1911, 

I,  280  et  seq. 
Expulsion  hors  d'Allemagne  de  d616gu6s  syndicalists  r^volutionnaires  fran^ais, 

par  A.  R.     (38  Clunet,  1911,  1181-84.) 

Extradition. 

Die  Praxis  des  deutschen  Reichsgerichts  in  Auslieferungssachen,  von  W.  Mett- 
genberg.     (18  Ztschr.  f.  int.  pr.  u.  off.  Recht.,  1908,  398-445.) 

Foreign  Corporations. 

Recognition  of  foreign  companies  in  Germany  by  Dr.  Schirrmeister.      (22nd 

Rep.  Int.  Law  Asso.,  1905,  259-268.) 
Cohen.     Die  Rechtsfahigkeit  auslandischer  juristischer  Personen  im  Inlande. 

Erlangen,  1904  (doctor's  dissertation). 
Die  Rechtsfahigkeit  auslandischer  juristischer  Personen  nach  dem  B.  G.  B.  und 

einzelnen  AusfUhrungsgesetzen  zum  B.  G.  B.,  von  J.  Plotke.     (10  Ztschr. 

f.  int.  Pr.  u.  Strafrecht,  1900,  211-218.) 
Die  Behandlung  auslandischer  Handelsgesellschaften  unter  besonderer  Beriick- 

sichtigung  des  Grundstiickerwerbes,  von  Dr.  Otto  Nelte.     (1912-13  Jahrb. 

f.  d.  int.  Rechtsverkehr,  181-194.) 
De  la  condition  des  soci6tes  6trangeres  en  AUemagne,  par  E.  Wolff.     (13  Clunet, 

1886,  134-145,  272-285,  641-656.) 
Die  Niederlassung  und  Besteuerung  auslandischer  Firmen.      (7  Leipziger  Ztschr. 

f.  Handelsrecht,  1913,  504-515.) 
Exclusion  of  American  life  insurance  companies.      Reprinted  from  House  Doc. 

247,  54th  Cong.,  1st  sess.     (For.  Rel.,  1895, 1,  428-453;  see  also  subsequent 

volumes  of  For.  Rel.) 

Foreign  Judgments. 

De  I'exocution  des  jugements  6tranger8  dans  I'empire  d'Allemagne,  par  Keyssner. 

(9  Clunet,  1882,  25-37.) 
Questions  relatives  a  lYixdcution  des  jugements  Strangers  en  AUemagne,  par  L. 

Beauchet.     (10  Clunet,  1883,  239-247.) 


APPENDIX  893 

Industrial  and  Literary  Property. 

Dv  la  protection  en  Allemagne  des  marques  de  fabrique  ou  de  commerce  Stran- 
gers, par  Dr.  Kohler.     (14  Clunet,  1887,  39-46,  161-166.) 

Internationaler  Erfindcrschutz  auf  der  Grundlage  des  deutschen  Rechtes,  von 
Ludwig  Wertheimer.     (1912-13  Jahrb.  f.  d.  int.  Rechtsverkehr  342-354.) 

Der  Schutz  des  Auslanders  im  deutschen  Warenzeichenrecht,  von  E.  Kloeppel. 
(1912-13  Jahrb.  f.  d.  int.  Rechtsverkehr  355-364.) 

Einfluss  der  Nationalitilt  auf  die  Erlangung  des  Patentschutzes,  von  Karl  Scha,-- 
fer.     (2  Gewerblicher  Rechtsschutz  und  Urheberrecht,  1897,  134-136.) 

Die  gesetzlichen  und  vertragsmassigen  Grundlagen  des  Rechtsschutzes  deutscher 
Urheber  im  Auslande  und  frenider  Urheber  im  deutschen  Reiche,  von 
Josef  Keidel.     (4  Ztschr.  f.  int.  Pr.  u.  Strafrecht,  1894,  18-47.) 

Das  internationale  Urheberrecht  in  seiner  Geltung  fur  Deutschland,  von  A. 
Osterrieth.     (1912-13  Jahrb.  f.  d.  int.  Rechtsverkehr,  329-341.) 

Unfair  Competition. 

Auslander  und  der  Schutz  gegen  unlautercn  Wettbewerb,  von  Fuld.     (12  Ztschr. 

f.  int.  pr.  u.  off.  Recht,  1902,  262-269.) 
Konnen  sich  auslandische  Personen  auf  das  Gesetz  betreffend  den  unlauteren 

Wettbewerb    berufen,    von    Fuld.     (2    Gewerblicher    Rechtsschutz     und 

Trhebcrrecht,  1897,  208-209.) 

Marriage  and  Divorce. 

.Saucr,  Karl.  Das  deutsche  Eheschliessungs-  u.  Ehescheidungsrecht  unter 
Berucksichtigung  der  llaager  internationalen  Privatrechtsabkommen  vom 
12  Juni  1902.     Munchen,  1909. 

Schmitz,  L.,  and  Wichmann,  A.  Die  Eheschliessung  im  internationalen  Verkehr. 
1.  Bd.  Die  Eheer  fordemisse  der  Auslander  im  Deutschen  Reiche.  3.  aufl. 
Duisburg-Ruhrort,  1910. 

Marriage  between  aliens  in  Prussia.  Requirement  of  certificate  that  no  impedi- 
ment exists.     (For.  Rel.,  1900,  521-522.) 

Die  Eheschliessung  von  Auslandem  im  deutschen  Reiche  und  von  Deutschen  im 
Auslande  nach  Gesetzgebung  und  Praxis  des  deutschen  internationalen 
Privatrechts,  von  Arthur  Mayerowitz.  (10  Ztschr.  f.  int.  Pr.  u.  Strafrecht, 
1900,  1-40.) 

Le  mariage  des  Strangers  en  Baviere,  par  Joseph  Keidel.  (23  Clunet,  1896, 
981-990.) 

Poor  Relief,  etc. 

L'assistance  des  Strangers  en  Allemagne,  par  De  Reitzenstein.  (Extrait  du 
Bull.  soc.  intern,  pour  I'^tude  des  questions  d'assistance.) 

Die  Fiirsorge  fiir  Auslander  in  Deutschland,  von  A.  Olshausen.  (Schriften  des 
deutschen  Vereins  fiir  Armenpflege  u.  Wohlthatigkeit,  Heft  69.     Leipzig, 

1904.) 

Social  Insurance. 

La  situation  juridique  des  ouvriers  Strangers  en  Allemagne  au  point  de  vue  des 


894  APPENDIX 

aasurances  sociales,  par  E.  L^monon.    (4  R.  D.  I.  priv^,  1908,  385-391; 
5  R.  D.  1.  prive,  1909,  112-129.) 

Succession. 

Bohm,  F.  Handbuch  der  internationalen  Nachlassbehandlung  mit  be8onderer 
Rucksicht  auf  da8  Deutsche  Reich.     Augsburg,  1881-1885.     2  v. 

Pfordten,  Th.  Die  Behandlung  de  Nachlasses  von  Auslandern.  MUnchen, 
1904. 

Beerbung  von  Auslandern  in  Deutschland,  von  Scherer.  (31  Ztschr.  f.  deut. 
burg.  Recht,  1900,  557-561.) 

Taxation. 

Kramer,  H.  Die  Einkommen-und  Vermogensbesteuerung  der  Auslander  und 
Forensen  in  Preussen-Sachsen-Oldenburg,  WUrttemberg-Baden-Hessen. 
Berlin,  1909. 

GREAT  BRITAIN 

General  Works. 

Burge,  William.  Commentaries  on  colonial  and  foreign  laws.  New  edition  by 
A.  W.  Renton  and  G.  G.  Phillimore.  London,  1907-14.  Vols.  1-4'  (6 
volumes  in  all). 

Phillimore,  Robert.  Commentaries  upon  international  law.  Vol.  4:  Private 
international  law  or  comity.     3rd  ed.     London,  1880. 

Westlake,  John.  A  treatise  on  private  international  law.  5.  ed.  Assisted  by 
Alf.  Fr.  Topham.     London,  1912. 

Dicey,  Albert  V.  A  digest  of  the  law  of  England  with  reference  to  the  conflict 
of  laws.  London,  1896.  2nd  ed.,  1908.  American  ed.  with  notes  of 
American  cases,  by  J.  B.  Moore.     London,  Boston,  1896. 

Rattigan,  W.  H.     Private  international  law.     London,  1895. 

Foote,  J.  A.  Foreign  and  domestic  law.  A  concise  treatise  on  private  inter- 
national law.     4th  ed.     London,  1914. 

Nelson,  Horace.     Private  international  law.     London,  1889. 

Aliens  in  General. 

Hansard,  Geo.  Treatise  on  the  law  relating  to  aliens.  London,  1844;  suppl. 
1846. 

Le  Baron,  F6Ux-A.  Le  code  des  etrangers  ou  recueil  des  lois  et  de  la  jurispru- 
dence anglaise  concernant  les  Strangers.     Londres,  1849. 

Emery,  G.  F.   Law  relating  to  foreigners  and  foreign  corporations.   London,  1908. 

Henriques,  H.  S.  Q.  The  law  of  aliens  and  naturalization  including  the  text 
I  of  the  Aliens  act,  1905.     London,  1906. 

Sibley,  Norman  W.,  and  Ehas,  A.  The  Aliens  act  (Stat.  5  Edw.  VII,  c.  13),  and 
the  right  of  asylum.     London,  1906. 

Aliens  act,  1905.  Regulations,  etc.,  made  by  the  secretary  of  state  for  the 
Home  department  with  regard  to  the  administration  of  the  Aliens  act, 
1905.  London,  1906.  (Gt.  Brit.  Parliament.  Papers  by  command. 
Cd.  2879.) 


APPENDIX  895 

Davidson,  W.  M.     The  statue  of  the  alien.     London,  1909. 

Landa,  Myer  Jack.     The  alien  problem  and  its  remedy.    London,  1911. 

P^pin,  Eugene.     La  question  des  6trangers  en  Angleterre.     L' Aliens  Act  de 

1905,  causes  et  r^sultats.     Paris,  1913. 
L'aliens  act  anglais  de  1905,  par  H.  S.  Q.  Henriques.     (3  R.  D.  L  priv6,  1907, 

340-358.) 
La  doctrine  anglaise  en  matiere  de  droit  international  priv6,  par  J.  Westlake. 

(9  Clunet,  1882,  5-25.) 
Alien  legislation  and  the  prerogative  of  the  crown,  by  Thoe.  W.  Haycraft.     (13 

Law  Quar.  Rev.,  1897,  165-186.) 
British  rules.     Summary  jurisdiction  (aUens),  1906.     [Jan.  3,  1906.]     (99  St. 

Pap.,  1905-06,  53-56.) 

Admission. 

Ahens'  right  to  enter  the  country.     (130  L.  T.  253-254;  32  Aust,  L.  T.,  1910-11, 

86-87.) 
Le  droit  d'asile  en  Angleterre  depuis  la  loi  sur  les  Strangers,  par  N.  W.  Sibley 

and  Alf.  Elias.     (34  Clunet,  1907,  29-39.) 
De  I'admission  et  de  I'expulsion  des  Strangers  en  Angleterre,  by  Eugene  P6pin. 

(41  Clunet,  1914,  425-437.) 

Expulsion. 

Le  droit  d'expulsion  des  etrangers  en  Angleterre,  par  W.  F.  Craies.     (16  Clunet, 

1889,  357-380.) 
Pepin's  article,  supra,  in  41  Clu  let  (1914),  425-437. 

Foreign  Corporations. 

De  la  condition  legale  des  societes  ^trangSres  en  Angleterre,  par  Anderson  Foote. 

(9  Clunet,  1882,  465-488.) 
De  la  situation  des  societes  etrangeres  en  Angleterre,  par  Israel  Davis.     (35 

Clunet,  1908,  103-113.) 
Les  societes  etrangeres  en  Angleterre,  par  M.  Th^ry.     (36  Clunet,  1909,  409- 

412.) 
La  loi  anglaise  du  21  decembre  1908  et  les  societds  Etrangeres,  par  P.  Goul6 

(5  R.  D.  L  priv6,  1909,  130-139.) 
Emery,  G.  F.     Law  relating  to  foreigners  and  foreign  corporations.     London, 

1908. 

Marriage  and  Divorce. 

Act  of  the  British  Parliament  to  amend  the  law  with  respect  to  marriages  be- 
tween British  subjects  and  foreigners.  [29th  November,  1906.)  (99  St. 
Pap.,  1905-06,  10-14.) 

A  note  on  the  British  "  Marriage  with  Foreigners  Act,"  1906.  By  Mr.  Charteris. 
(25th  Rept.  Int.  Law  Assn.,  1908,  397-408.) 

Succession. 

Bentwich,  Norman.  The  law  of  domicil  in  its  relation  to  succession  and  the  do«» 
trine  of  renvoi.    London,  1911. 


896  APPENDIX 

Right  of  United  States  consuls  to  receive  effects  of  United  States  citizens,  de- 
ceased on  British  territory  or  vessels.     (For.  Rel.,  1903,  483-488.) 
Wills  of  foreigners.     (102  Law  Times,  1896-7,  198-200.) 

Taxation. 

De  la  condition  en  Angleterre  des  commercants  Strangers  au  point  de  vue  de 
1'"  Income  tax."     Par  Alfred  Michel.     (15  Clunet,  1888,  713-719.) 

Hertz,  W.  G.  Die  Besteuerung  der  Auslander  in  der  englischen  Einkommen- 
steuer.     Stuttgart,  1910. 

Canada 

Aliens  in  General. 

Betrachtungen  iiber  die  civilrechtliche  Stellung  der  Auslander  in  Canada,  von 

Vlad.  Pappafava.     (1  Jahr.  der  int.  Vereinig.  f.  Rechtswissenschaft,  1895, 

268-272.) 
De  la  condition  legale  des  etrangers  au  Canada,  par  H.  E.  Taschereau.     (22 

Clunet,  1895,  55-64.) 
Act  of  May  9,  1881  in  re  rights  of  ahens.     (72  St.  Pap.,  1880-81,  1215.) 
Tenure  of  land  act.  May  4,  1900.     (92  St.  Pap.,  1899-1900,  1295-96.) 

Admission. 

Act  of  the  government  of  Canada  to  amend  the  Act  to  restrict  the  importation 
and  employment  of  ahens.  (See  Act  of  June  29,  1897,  90  St.  Pap.  1897-98, 
934-5)— May  23,  1901.     (95  St.  Pap.,  1901-02,  302-303.) 

See  also  statutes  in  the  separate  provinces. 

Foreign  corporations. 

De  la  situation  des  societes  commerciales  etrangSres  dans  la  province  de  Quebec 
(Canada).    Par  Fabre-Surveyer.     (30  Clunet,  1903,  517-533.) 

British  Colonies 

Aliens  in  General. 

See  Bedwell,  C.  E.  A.  The  legislation  of  the  Empire.  London,  1909.  4  v. 
and  the  colonial  statutes  in  the  British  and  Foreign  State  Papers. 

Marriage. 

Eversley,  William  P.,  and  Craies,  William  F.  The  marriage  laws  of  the  British 
empire.     London,  1910. 

Australia. 

Des  restrictions  a  I'immigration  et  k  I'admission  des  Strangers  en  Australie. 

(30  Clunet,  1903,  287-294.) 
De  la  condition  des  etrangers  et  de  la  naturalisation  en  Australie,  par  Edmond 

Alix.     (2  Nouv.  rev.  prat,  de  dr.  int.  priv6,  1906,  289-295.) 
(A  few  of  the  important  statutes  will  be  specifically  mentioned.) 


APPENDIX  897 

South  Australia. 

Amendment  of  the  law  of  aliens,  Nov.  3,  1864.     (70  St.  Pap.,  1878-79,  722-726.) 

Fees  under  the  act.     (70  St.  Pap.,  1878-79,  726.) 

Amendment  to  aliens  act  of  1864— Dec.  23,  1890.     (82  St.  Pap.,  1889-90,  1074- 

75.) 
(Subsequent  amendments  are  contained  in  the  later  volumes  of  the  State  Papers 

and  in  the  colonial  statutes.) 

Victoria. 

Act  of  May  9,  1865,  concerning  the  real  and  personal  property,  etc.,  of  aliens. 

(69  St.  Pap.,  1877-78,  717-720.) 
Same.     July  10,  1890.     (82  St.  Pap.,  1889-90,  1075-77.) 
Same.     Dec.  24,  1896.     (88  St.  Pap.,  1895-96,  1048-49.) 
(Subsequent  amendments  are  contained  in  the  later  volumes  of  the  State  Papers 

and  in  the  colonial  statu teis.) 

Bermuda. 

The  immigration  act,  1902,  No.  58.    Dec.  5,  1902.    (95  St.  Pap.,  1901-02,  236- 

250.) 
Same.     1907,  No.  4.     Feb.  5,  1907.     (100  St.  Pap.,  1906-07,  618-20.) 
Act  of  November  10,  1885  re  foreign  companies.    (85  St.  Pap.,  1892-93,  779- 

80.) 
(Subsequent  amendments  are  contained   in  the  later  volumes  of  the  State 

Papers  and  in  the  colonial  statutes.) 

British  Guiana. 

The  immigration  ordinance,  1891,  of  the  Colony  of  British  Guiana.    Oxford, 

1895. 
(Subsequent  amendments  are  contained  in  the  later  volumes  of  the  State  Papers 

and  in  the  colonial  statutes.) 

British  Honduras. 

Act  concerning  the  rights  and  privileges  of  aliens — July  19,  1855.     (69  St.  Pap., 

1877-78,  316-319.) 
(Subsequent  amendments  are  contained  in  the  later  volumes  of  the  State  Papers 

and  in  the  colonial  statutes.) 

Cyprus. 

Law  concerning  deceased  foreigners'  estates — May  1,  1886.     (78  St.  Pap.,  1886- 

87,  763-764.) 
(Subsequent  amendments  are  contained  in  the  later  volumes  of  the  State  Papers 

and  in  the  colonial  statutes.) 

Hong  Kong. 

British  ordinance — Rights  of  aUens  to  hold  and  transfer  property  within  Colony 
of  Hong  Kong.  Hong  Kong,  Nov.  17,  1853.  (47  St.  Pap.,  1856-57,  590- 
591.) 


898  APPENDIX 

(Subsequent  amendments  are  contained  in  the  later  volumes  of  the  State  Papers 
and  in  the  colonial  statutes.) 

Malta. 

Ordinance,  Feb.  9,  1899,  respecting  the  landing  and  the  residence  of  aliens  in 

those  islands.     (94  St.  Pap.,  1900-01,  87-93.) 
Same.     Amendment,  Apr.  2,  1900.     (94  St.  Pap.,  1900-01,  122-123.) 
(Subsequent  amendments  are  contained  in  the  later  volumes  of  the  State  Papers 

and  in  the  colonial  statutes.) 

New  Zealand. 

Act  of  Aug.  17,  1880,  consolidating  the  laws  relating  to  aliens.     (71  St.  Pap., 

1879-80,238-241.) 
Act  of  Sept.  24,  1892,  re  amendment  of  aliens  acts.     (85  St.  Pap.,   1892-93, 

319-320. 
Act  of  Nov.  6,  1884,  re  foreign  companies.     (75  St.  Pap.,  1883-84,  266-270.) 
Act  of  Oct.  18,  1894,  re  foreign  insurance  companies'  deposits.     (86  St.  Pap., 

1893-94,  396-401.) 
(Subsequent  amendments  are  contained  in  the  later  volumes  of  the  State  Papers 

and  in  the  colonial  statutes.) 

South  Africa. 

Immigrant's  restriction  act,  1907,  with  amended  regulations  thereunder.  Pre- 
toria, 1909. 

Regulations  governing  admission  of  aliens  into  the  Transvaal  and  Orange  River 
Colonies.     (For.  Rel.,  1903,  545-551.) 

Situation  dans  la  Republique  Sud-africaine  au  point  de  vue  des  droits  civils, 
de  la  naturalisation  et  des  droits  politiques  (Uitlanders).  (7  R.  G.  D.  I.  P., 
1900,  100-172.) 

Were  the  outlanders  aliens?     By  J.  Dove  Wilson.     (12  Jur.  rev.  59-71.) 

L'Angleterre  et  Ifc  Transvaal,  par  Paul  Heilborn.  (3  Rev.  dr.  pub.,  1896, 
166-189.) 

GREECE 

General  Works. 

Strcit,  G.     Systdme  de  droit  international  prive.     t.  l(engrec).     Athenes,  1907. 

Aliens  in  General. 

Clerc,  Michel.     Les  m6t^ques  ath6niens.     Paris,  1893. 

Francotte,  H.     De  la  condition  des  Strangers  dans  les  cites  grecquos.     Louvain, 

1903. 
Lc  droit  international  prive  en  Grece,  par  N.  Politis.     (35  Clunet,  1908,  5-24.) 
Le  droit  dos  6trangers  chez  les  Hellenes.     (§  53,  pp.  202-206  of  HoltzendorfT, 

FraiiQois  and  Rivier,  Alphonse.)   Introduction  au  droit  des  gens.   Bruxelles, 

1889. 
Laurent,    Fran^-ois.    Droit   civil    international.    Bruxelles,    1880.       Vol.    1, 

pp.  121-130. 


APPENDIX-  899 

Politis,  Nicolas  S.  La  convention  consulaire  gr^co-turque,  et  I'arbitrage  des 
ainbassadeurs  des  grandes  puissances  k  Constantinople  du  2  avril,  1901. 
Paris,  1903.     (Extrait  de  la  R.  G.  D.  I.  P.) 

Civil  Procedure. 

(Les  proces  des  Strangers  en  Grece  k  la  lumidre  de  I'^pigraphie  moderne.) 

Der  griechische  Freindenprozess  im  Licht  der  neueren  Inschriftenfunde,     on 

H.    F.    Hitzig.     (28   Ztschr.   d.   Savigny-Stiftuiig.     Roinanistische   Abt., 

1907,211-253.) 

Courts — Jurisdiction  of  Aliens. 

Philaretos,  G.  N.  Jurisdiction  des  etrangers.  Athens,  1906.  (Extract  from 
25  Jurisprudence  grecque  et  fran^aise,  written  in  Greek.) 

Foreign  Corporations. 

De  la  condition  legale  des  8oci4<6s  ^trangeres  en  Grece,  par  Jean  Euclid&s.    C16 

Clunet,  1889,  59-65.) 
Die  Rechtstellung  der  auswiirtigcn  Akticngesellschaften  in  Griechenland,  von 
G.  Streit.     (6  Ztschr.  f.  int.  Pr.  u.  Strafrecht,  1896,  193-209,  314-331.) 

Foreign  Judgments. 

De  I'efTet  et  de  I'exdcution  des  actes  et  jugements  Strangers  en  Gr6ce,  par  N. 
J.  Saripolos.     (7  Clunet,  1880,  173  178.) 

Industrial  Property. 

La  propriete  industricUe  en  Grece  et  la  protection  des  droits  des  etrangers  en 
cette  mati^re,  by  G.  Diobouniotis.     (39  Clunet,  1912,  1047-1056.) 

Marriage. 

Die  Eheschlieesung  zwischen  Inlandern  u.  Auslandern  nach  griechischem  Recht, 
von  Georg  Diobouniotis.     (8  Ztschr.  f.  int.  Pr.  u.  Strafrecht,  1898,  17-32.) 

ITALY 

General  Works. 

Rocco.  Deir  uso  ed  autorita  delle  leggi  del  Regno  delle  due  Sicile  considerate 
nelle  relazioni  colle  persone  e  col  tcrritorio  degli  stranieri,  ossia  trattato  di 
diritto  civile  internazionale.     3.  ed.     Napoli,  1858-59.     3  v. 

riore,  Pasquale.  Le  droit  international  priv6.  4.  6d.  trad,  par  C.  .Antoine. 
Paris,  1907.     4  v. 

Lomonaco,  G.     Trattato  di  diritto  civile  internazionale.     Xapoli,  1874. 

Anzilotti,  D.     II  diritto  internazionale  nei  giudizi  interni.     Bologna,  1905. 

Anzilotti,  D.     Studi  critici  di  diritto  internazionale  privato.     Roma,  1898. 

Casanova,  Lod.  Del  diritto  internazionale.  3.  ed.  di  Em.  Brusa.  Firenze, 
1876. 

Catellani,  E.  L.  II  diritto  internazionale  privato  ed  i  suoi  recenti  progressi, 
2.  ed.     Torino,  1895-1902.     2  v. 


900  APPENDIX 

Contuzzi,  Paolo.     Diritto  internazionale  private.     Milano,  1890. 

Contuzzi,  Paolo.     Commentaire  th^orique  et  pratique  des  Conventions  de  la 

Haye  concernant  la  codification  du  droit  international  prive.     Paris,  1905. 

V.  1. 
Diena,  G.     Trattato  di  diritto  commerciale  internazionale.     Firenze,  1900-1905. 

3v. 
Fedozzi,  P.     II  diritto  processuale  civile  internazionale.     Bologna,  1905. 
Diena,  G.     Principi  di  diritto  internazionale.     Naples,  1908-10.     2  v. 
Pierantoni,  A.     II  diritto  civile  e  la  procedura  internazionale  nelle  convenzioni 

dell'Aja.     Napoli,  1906. 
Buzzati,  G.  C.    Trattato  di  diritto  internazionale  privato  secondo  le  Convenzioni 

dell'Aja.     t.  1.     Introduzione,  II  matrimonio  secondo  la  Convenzione  dell 

'Aja  del  12  guignio  1902.     Milan,  1907. 

Aliens  in  General. 

Gianzana,  8.     Lo  straniero  nel  diritto  civile  italiano.     Turin,  1885. 

Esperson,  P.     Condizione  giuridiche  deUo  straniero  secondo  le  legislazioni  e  le 

giurisprudenze  italiana  ed  estere.     Milano,  1889-1892.     2  v. 
Lanzavecchia,  R.     II  diritti  degli  stranieri  e  la  loro  protezione.     Turin,  1906. 
Masi,  G.     Condizione  civile  delle  persone  straniere.     Turin,  1906. 
Pappafava,  Vladimir.     Sulla  condizione  civile  degli  stranieri.     Trieste,  1882. 
Pappafava,  Vladimir.     De  la  condition  civile  des  etrangers,  traduit  de  I'italien 

par  Camille  Wiliquet.     Bruxelles,  1884. 
fitude  sur  la  condition  civile  des  Strangers  en  Italie,  par  Pappafava;  traduction 

analytique  par  Maurice  Baudouin  Bugnet.     (22  Bidl.  de  leg.  compar^e, 

1892-93,  365-372.) 
Dei  diritti  della  persona  straniera  secondo  la  legge  italiana,  per  G.  F.  Elena. 

(57  Archivio  giuridico,  1896,  569-615;  59  Archivio  giuridico,  1897,  101-170. 

393-440,  512-653.) 
Le  droit  international  prive  dans  la  legislation  italienne,  par  Pietro  Esperson. 

(6  Clunet,  1879,  329-351;  7  Clunet,  1880,  245-259,  337-346.) 

Courts — Jurisdiction  of  Aliens. 

Giurisdizione   dei   tribunali    italiani   sugli   stranieri.     Legge   regolatrice   delle 
obbligazioni  commerciali,  per  D.  Anzilotti.     (1  Riv.  dir.  int.,  1906,  82-87.) 

Expulsion. 

Monzani,  R.     II  diritto  di  espellere  gli  stranieri  considerato  nella  dottrina, 

nella  legislazione  e  nella  giurisprudenza.     Modena,  1899. 
Lusena.     Diritto  d'expulsione  degli  stranieri.     Torino,  1891. 
De  la  expulsion  des  etrangers  en  Italie,  par  Tangrede  Canonico.      (17  Clunet, 
1890,  219-222.) 

Foreign  Corporations. 

Foreign  companies  in  Italy,  by  Malcom  Mcllwraith.     (10  Law  Quar.  Rev.,  1894, 

176-181.) 
Pierantoni,  A.     La  capacittl  delle  persone  giuridiche  en  Italia.    Torino,  1884 


APPENDIX  901 

Danieli,  G.     I^e  societ  atraniere  in  Italia.    Condizione  legale      Roma,  1885. 
Mariinoni,  M.     Delia  condizione  giuridica  della  societJl  commerciale  atraniere. 

Roma,  1914. 
De  la  condition  des  societes  ctrang^res  en  Italic,  par  G.  Danieli.     (15  Clunet, 

1888,  17-32,  330-343.) 
De  la  situation  juridique  faite  en  Italic  aux  societes  de  commerce  dtrang^rea, 

par  T.  C.  Giannini.     (4  Riv.  dir.  int.,  1901,  16-30.) 
La  persone  giuridiche  straniere  i  la  giurisprudenza  italiana,  per  Giovanni  Lo- 

monaco.     (10  II  Filangieri,  pt.  1,  1885,  379-386.) 
Les  societes  etrangeres  en  Italic  d'apres  la  legislation  nouvelle,  par  E.  Clunet. 

(10  Clunet,  1883,  26-28.) 
De  la  condition  des  societes  etrangeres  en  Italie,  par  Charles  Lefevre.     (11 

Clunet,  1884,  234-246.) 
Les  societes  etrangeres  en  Italie,  by  Jean  Perroud.     (37  Clunet,  1910,  1086- 

1093.) 
Capacidad  de  las  personas  juridicas  extranjeras  en  Italia.     By  G.  Bruni.     (95 

Rev.  gen.  de  leg.  y  juris.,  1899,  26-38). 

Foreign  Judgments. 

La  Loggia,  Enrico.     La  esecuzione  delle  sentenze  straniere  (in  materia  civile). 

Torino,  1902. 
Delfino,  C.     L'esecutorieta  delle  sentenze  civile  straniere  in  Italia.     Roma,  1912. 
De  I'execution  en  Italie  des  jugements  etrangers  emportant  condamnation  sur 

le  simple  defaut  du  defendeur,  par  Charles-Francois  Ansaldi.     (34  Clunet, 

1907,  639-647.) 
Die  Vollstreckung   auslandischer   Urteile   nach   italienischem   Recht,    von  C. 

Ansbacher.     (1912  Yerhandlungen  Int.  Ver.  vergl.  Rechtswiss.  u.  Volksw. 

451-457.) 
De  I'autorite  des  jugements  etrangers  d'apres  la  jurisprudence  italienne,  par  A. 

Chretien.     (13  Clunet,  1886,  667-676.) 
Des  effets  en  Italie  des  jugements  etrangers  de  divorce,  par  Vittorio  de  Rossi. 

(30  Clunet,  1903,  263-271.) 
Eflfets  juridiques,  en  Itahe,  des  jugements  etrangers  de  divorce,  by  Ernesto 

Fortunato.     (41  Clunet,  1914,  420-425.) 
Die  ZwangsvoUstreckung  aus  auslandischen  LTrteilen  und  Akten  im  Konigreiche 

Italien,  von  Enrico  Martina.     (7  Blatt.  f.  vergl.  Rechtawissenschaft,  1911, 

167-171.) 

Literary  Property. 

Les  droits  des  auteura  Strangers  en  Italie  en  matiere  litt^raire  et  artistique, 
I)ar  Henri  Rosmini.     (17  Clunet,  1890,  605-638.) 

Marriage  and  Divorce. 

Cimoali,  E.     II  matrimonio  dello  straniero.     v.  I.     Torino,  1898. 

Gli  stranieri  e  il  divorzio  in  Italia.    Le  conaequenze  della  sentenza  21  novembre 

1900  della  Corte  di  caesazione  di  Torino.    Per  A.  Macchioro.     (42  Monitors 

dei  tribunali,  1901,  81-82.) 


902  APPENDIX 

Succession. 

De  la  succession  des  Strangers  en  Italie,  par  Pasquale  Fiore.     (30  Clunet,  1903, 
42-70.) 

JAPAN 
Aliens  in  General. 

Lonholm,  L.     The  condition  of  foreigners  under  the  new  treaties.     Tokyo, 

1899  (and  supplement). 
Dillon,  Gustave.     Essai  sur  la  condition  juridique  des  Strangers  au  Japon. 

Paris,  1908. 
Japanese  law  in  relation  to  the  status  of  foreigners,  by  R.  Masujuna.     (26  New 

York  State  Bar  Asso.  Rep.,  1903,  175-197.) 
Les  etrangers  au  Japon  et  les  Japonais  a  I'etranger.     Etude  historique  et  statis- 

tique.     Par    Edouard    Clavery.     (79    Rev.    g6n.    d'administration,    1904, 

5-19,  152-163.) 
Le  droit  international  prive  au  Japon,  par  S.   Yamada.     (28  Clunet,   1901, 

632-643.) 
De  la  condition  juridique  des  etrangers  au  Japon,  par  H.  Nagaoka.    (32  Clunet, 

1905,  1217-1231;  33  Clunet,  1906,  107-115,  1055-1063;  34  Clunet,  1907, 

314-321.) 
Condition  legale  de  la  religion  chretienne  au  Japon,  par  Ligneul.     (31  Clunet, 

1904,  657-660.) 
Condition  legale  du  catholicisme  au  Japon,  par  Ligneul.     (32,  2.  Ser.  Rev.  oath. 

des  institutions,  1904,  524-528.) 
Le  droit  de  propriete  des  etrangers  au  Japon.     (6  R.  D.  I.  prive,  1910,  647-649.) 

Courts — Jurisdiction  of  Aliens. 

Scidmore,  George  H.     A  digest  of  leading  cases  decided  in  the  United  States 

consular  court  at  Kanagawa,  Japan.     Yokohama,  1882. 
L'exterritorialite  au  Japon,  par  G.  Boissonade.     (19  Clunet,  1892,  632-640.) 
Consular  jurisdiction  over  civil  suits — Case  of  Geo.  W.  Lake  (For.  Rel.,  1894, 

376-390.) 
(Extraterritoriality  has  been  abolished  in  Japan  by  general  recognition  of  the 

Great  Powers  and  by  treaty.) 

Foreign  Corporations. 

Position  des  societes  et  corporations  etrangeres  au  Japon,  par  Masujuna.     (In 
"Japan  Register  and  Messenger.") 

Industrial  Property. 

Protection  des  etrangers  en  matiere  de  propriety  industrielle.     (14  La  Propri6t6 

industrielle,  1898,  130  el  seq.) 
Quelques  details  sur  la  protection  des  etrangers  en  matiere  de  propriete  indup- 
trielle.     (26  Clunet,  1899,  1095-1096.) 

Korea 
Aliens  in  General. 

La  condition  juridique  des  Strangers  en  Cor6e,  par  Francis  Rey.     (2  R.  D.  I, 


APPENDIX  903 

pnv6,  1906,  295-308;  3  R.  D.  I.  priv6,  1907,  359-576;  4  R.  D.  I.  priv6,  1908, 
111-128.) 

LUXEMBURG 

Ruppert,  P.  Le  grand-duch^  de  Luxembourg  dans  aes  relations  Internationales: 
Recueil  des  traites,  conventions  et  arrangements  internationaux  et  dispo- 
sitions legislatives  diverses  concernant  les  etrangers.     Luxembourg,  1892. 

Law  of  December  30,  1893,  concerning  the  police  of  foreigners.  (85  St.  Pap., 
1892-93,  731-734.) 

Loi  du  30.  decembre  1893,  concernant  la  police  des  etrangers.  (Memorial  du 
Grande-Duche  de  Luxembourg,  du  4  Janvier  1894.)  (2  R.  G.  D.  L  P.,  1895, 
Doc,  pp.  7-9.) 

MONACO 
Aliens  in  General. 

Condition  juridique  des  etrangers  dans  la  Principaut6  de  Monaco,  par  Hector 
De  RoUand.     (17  Clunet  4890,  54-72,  236-256.) 

Foreign  Judgments. 

De  I'effet  des  jugements  et  actes  etrangers  dans  la  principauti  de  Monaco, 
par  E.  de  Loth.     (4  Clunet,  1877,  121-131.) 


MOROCCO 
Aliens  in  General. 

De  la  condition  juridique  des  etrangers  au  Maroc  au  point  de  vue  civil,  par 

D.  Saurin.     (34  Clunet,  1907,  5-19;  284-294.) 
Le  Boeuf,  Paul.     De  la  protection  diplomatique  et  consulaire  des  indigenes 

au  Maroc.     Bergerac,  1905. 
De  I'abus  de  la  "protection  et  de  la  naturalisation"  au  Maroc  by  R.  de  Caix 

(40  Clunet,  1913,  79-89.) 
Condition  civile  des  fran^ais  et  des  etrangers  dans  le  protectorat  fran^ais  du 

Maroc.     Dahir  du  9  Ramadan  1331  (Aug.  12,  1913).    BuU.  off.  de  I'Empire 

Cherifien.     Protectorat  de  la  Rep.  frangaise  au  Maroc,  Sept.  12,   1913. 

(41  Clunet,  1914,  699-701.) 

Taxation. 

Regulation  concerning  the  taxes  laid  on  foreigners  in  Morocco,  signed  at  Tangier, 

Nov.  23,  1903.     (96  St.  Pap.,  1902-3,  1275-78.) 
See  also  Extraterritoriality. 

NETHERLANDS 

General  Works. 

Asser,  T.  M.  C.    Elements  de  droit  international  priv6,  traduit  par  A.  Rivier. 
Paris,  1884. 


904  APPENDIX 

Aliens  in  General. 

Achterberg,  C.  E.  Nederlanders,  vreemdelingen  en  ingezetenen.  De  wet 
van  12  December  1892  (Staatsblad  no.  268).     Groningen,  1895. 

Expulsion. 

I.e  droit  d'expulsion  des  Strangers  dans  la  legislation  des  Pays-Bas,  par  D.  J. 
Jitta.     (29  Clunet,  1902,  66-70.) 

Foreign  Corporations. 

De  la  condition  des  societes  etrangeres  dans  les  Pays-Bas,  par  W.  L.  P.  A. 
Molengraaflf.     (15  Clunet,  1888,  619-623.) 

Industrial  Property. 

Protection  des  marques  de  fabrique  ^trang^res  dans  les  Pays-Bas.  (8  Clunet, 
1881,  502-508.) 

Poor  Relief,  etc. 

L'assistance  judiciaire  gratuite  des  Strangers  et  la  convention  du  31  octobre 
1892  entre  la  Belgique  et  les  Pays-Bas,  par  C.  D.  Asser.  (26  R.  D.  I., 
1894,  331-334.) 

NORWAY 
General  Works. 

Synnestvedt,  M.     Le  droit  international  prive  de  la  Scandinavie.     Paris,  1904. 

Aliens  in  General. 

Wilson,  Th.  M.  The  new  law  of  Norwegian  citizenship  restricting  foreigners' 
rights.     Bergen,  1888. 

Foreign  Judgments. 

The  effect  of  foreign  judgments  in  Norway.     (22nd  Rep.  Int.  Law  Asso.,  1905, 

268-281.) 
See  also  Denmark  and  Sweden. 

PERSIA 
Aliens  in  General. 

La  condition  juridique  des  Strangers  en  Perse,  par  James  Greenfield.     (34  Clunet, 
1907,  257-272,  973-985.) 

Courts. 

Perse,     fitrangers.     Difficult^  d'acces  aux  tribunaux.     Boy  cottage  judiciaire. 

(38  Clunet,  1911,  378-379.) 
Des  rapports  d'affaires  des  Europeens  avec  la  Perse.     (35  Clunet,  1908,  1064- 

1069.) 

Domiciliary  Rights. 

Rel.'gious  persecutions  at  Hamadan  and  domiciliary  rights  of  Americans.  (For. 
Rel.,  1894,  492-508.) 


APPENDIX  905 

Taxation. 

Taxation  of  foreigners  engaged  in  trade.     (For.  Rel.,  1894,  481-484.) 
See  also  Extraterritoriality. 

PORTUGAL 
General  Works. 

Falcao,  Fernandes.     Do  direito  internacional  privado.     Coimbre,  1868. 

Guiniaraes,  Pedrosa  A.  S.  Introducyao  ao  estudo  do  direito  privado  inter- 
nacional.    Coimbra,  1878. 

Abreu,  Teixeira  de.     Das  relaQoes  civis  internacionaes.     Coimbra,  1894. 

Villela,  Alvaro.  Relagoes  jitridicas  internacionaes  de  caracter  privado.  Coim- 
bra, 1907-08. 

Aliens  in  General. 

De  la  condition  legale  des  etrangers  en  Portugal  d'apres  le  droit  commun  et 
d'apres  le  nouveau  Projet  de  Code  de  commerce  de  1887,  par  Ernest  Lehr. 
(15  Clunet,  1888,  352-354.) 

Law  authorizing  the  introduction  of  certain  changes  in  the  law  respecting  the 
arrival  and  sojourn  of  foreigners  in  Portugal.  Lisbon,  May  27,  1871. 
(63  St.  Pap.,  1872-73,    1186-87.) 

Decree  of  the  King  of  Portugal,  relative  to  the  residence  of  foreigners  in  Portu- 
gal (passports,  etc.).  Lisbon,  July  17,  1871.  (63  St.  Pap.,  1872-73, 
1187-89.) 

Marriage. 

La  nouvelle  legislation  portugaise  relative  au  mariage  et  le  droit  international, 
par  Maurice  Travers.     (7  R.  D.  I.  prive,  1911,  278-288.) 

Taxation. 

Decree  of  "Decima  industrial"  tax  on  foreigners.  Lisbon,  June  5,  1844.  (33 
St.  Pap.,  1844-45,  812-813.) 

Portuguese  Colonies 

Aliens  in  General. 

Alien  regulations  in  Portuguese  Colonies.     (For.  Rel.,  1906,  1244-45.) 
Movements  of  foreigners  in  the  province  of  Mozambique.     Ordinance.     Oct.  1, 
1892.     (84  St.  Pap.,  1891-92,  434-437.) 

RUMANIA 

Aliens  in  General. 

Boerescu,  M.  B.     Etude  sur  la  condition  des  Strangers  d'apres  la  legislation 

roumaine,  rapprochee  de  la  legislation  fran^aise.     Paris,  1900. 
Fuchs-Henel,  R.,  and  Doberentz,  G.    Gesetze  \md  Vorschriften  fur  die  Auslaader 

in  Rumanien.     Breslau,  1895. 
Theodorescu.     Les  lois  roumaines  et  les  etrangers.     Paris,  1905. 


900  APPENDIX 

Ordinance  concerning  permits  of  residence — August,  1900.    (92  St.  Pap.,  1899- 

1900,  475,  478.) 
De  la  condition  des  Strangers  en  Roumanie,  par  T.  G.  Djuvara.     (19  Clunet, 

1892,  1120-29.) 
De  la  condition  des  Strangers  en  Roumanie,  par  Ch.  Suliotis.     (14  Clunet,  1887, 

430-436.) 

Civil  Procedure. 

\Jn  etranger  peut-il  pratiquer  une  saisie-arrSt  en  Roumanie?  Par  D^m^tre 
Negulesco.     (32  Clunet,  1905,  959-963.) 

Consular  Jurisdiction. 

Boerescu,  Vasile.  M6moire  sur  la  juridiction  consulaire  en  Roumanie.  2.  6d. 
Bucarest,  1869. 

Expulsion. 

Law  of  6-18  April  1881,  concerning  the  expulsion  of  aliens.  (72  St.  Pap.,  1880- 
81,  1128-30.) 

Foreign  Corporations. 

De  la  condition  legale  des  societ^s  6trangeres  en  Roumanie.     (26  Clunet,  1899, 

977-989.) 
Les  socidt^s  6trang&res  en  Roumanie,  par  D^m^tre  Negulesco.     (37  Clunet, 

1910,  47-59.) 

Industrial  and  Literary  Property. 

Legislation,  constitution,  lois  et  reglements  de  la  Roumanie  pouvant  int^resser 
la  propriete  litt6raire  et  artistique  des  etrangers,  par  T.  G.  Djuvara.  (22 
Congr^s  international  de  la  Propriete  litteraire  et  artistique,  Compte- 
rendue,  1901,  128-130.) 

Les  droits  de  propriete  litteraire  et  artistique  des  etrangers  en  Roumanie,  par 
T.  G.  Djuvara.     (3  R.  D.  I.  priv6,  1907,  73-84,  675-698.) 

Marriage. 

Du  mariage  des  Roumains  a  I'^tranger  et  des  Strangers  en  Roumanie,  par  C.  N. 
Busdugan.     (26  Clunet,  1899,  56-74,  687-724,  509-534,  749-777.) 

Succession. 

Du  droit  des  h^ritiers  Strangers  sur  des  immeubles  ruraux  situes  en  Roumanie. 
La  "Lex  ferenda,"  par  Georges  Flaischlen.     (29  R.  D.  L,  1897,  491-534.) 

RUSSIA 
Aliens  in  GeneraL 

DiakofT,  Avenir.     La  Russie  et  les  Strangers;  recueil  pratique  des  lois  russes 

concernant  les  Strangers.     Bruxelles,  1903. 
Witte,  Fedor.    Die  Rechtsverhaltniase  der  Aualander  in  Rusaland.    Dorpat, 
1847. 


APPENDIX  907 

Handtmann,  O.  Beatimmungen  und  Vorschriften  fur  die  dauernd  oder  zeit- 
weilig  in  Russland  sich  aufhaltenden  Angehorigen  fremder  Staaten.  Riga, 
1893. 

Aper^u  sur  la  condition  des  etrangera  en  Rusaie,  par  Pierre  Kazansky.  (25 
Clunet,  1898,  225-233.) 

Die  rechtliche  Stellung  der  Aualander  in  Rusaland,  von  Klibanaki.  (14  Ztachr. 
f.  int.  pr.  u.  off.  Recht,  1904,  1-58.) 

Die  Rechtsverhaltnisae  der  Aualander  in  Ruaalaad  von  den  alteaten  Zeiten  bis 
zur  Gegenwart,  von  Otto  Handtmann.  (10  Ztachr.  f.  int.  Pr.  u.  Straf recht, 
1900,  106-125;  Koamodike,  Juli  1,  1900.) 

Righta  of  Americans  to  acquire  real  eatate.     (For.  Rel.,  1894,  539-540.) 

Righta  of  foreigners  to  own  real  estate  and  do  business  in  Russia.  (For.  Rel., 
1896,  529-530.) 

Oukases  concernant  I'acquisition  d'immeubles  par  les  etrangera,  aign^s  a  Gat- 
china,  le  14  mara  1887.     (18  Clunet,  1891,  324-327.) 

Courts — Jurisdiction  of  Aliens. 

Du  droit  pour  les  etrangera  d'eater  en  juatice  devant  les  tribunaux  russes,  par 
J.  Barkowaki.     (14  Clunet,  1887,  169-171.) 

Expulsion. 

Alexandrenko.    De  1' expulsion  des  etrangers  en  Russia.     1905. 

Foreign  Corporations. 

Pergamainte,  Joaeph.     De  la  condition  legale  des  aocietea  etrangerea  en  Russia. 

Paris,  1899. 
Rastorguev,  L.  P.     The  legal  position  of  English  companies  in  Russia.     London, 

1911. 
De  la  condition  dea  aocietea  Etrangerea  en  Ruasie,  par  J.  Barkowaki.     ( 18  Clunet, 

1891,  712-725.) 
Les  aocietea  etrangerea  en  Ruaaie.     (31  Clunet,  1904,  1044-46.) 
De  la  condition  legale  des  societes  etrangerea  en  Ruasie,  par  Joseph  Pergamainte. 

(Rev.  prat,  des  aocietea  civilea  et  commercialea,  1898,  97.) 
De  la  aituation  legale  des  aocietea  etrangerea  etabliea  en  Russie,  via-a-vis  dea 

loia  d'imp6t,  par  Joaeph  Pergamainte.     (Rev.  prat,  des  aocietea  civiles  et 

commercialea,  1899,  162.) 
Des  conditiona  juridiques  du  fonctionnement  des  societes  frangaiaea  par  actions 

en  Ruaaie,  par  Anatole  Winterhalter.     (25  Clunet,  1898,  42-46.) 
Agreement  between  the  United  Statea  and  Russia  regulating  the  position  of 

corporations  and  other  commerical  aaaociations — June  25,  1904.     (3  A.  J. 

I.  L.,  1909,  Supp.  281-282;  Malloy,  Treaties,  II,  1534.) 

Foreign  Judgments. 

De  I'execution  dea  jugementa  Etrangers  en  Russie,  par  J.  Engelmann.     (11 

Clunet,  1884,  111-140.) 
Ueber  die  Vollstreckbarkeit  auslandischer  Urteile  in   Russland,     (Blatt.   I 

vergl.  Rechtswissenschaft,  1912-13,  pp.  142,  171,  259. 


908  APPENDIX 

Jews. 

Juifs  etrangers.     Conditions  de  sejour.     (28  Clunet,  1901,  206.) 

Alleniand,  L.     Les  souffrances  des  juifs  en  Russie  et  le  devoir  des  ^tats  civilie^J 

Paris,  1907. 
Discriminatory  treatment  of  Jews,  American  citizens,  in  Russia.     (For.  Rel., 

1904,  790^794.) 
Treatment  and  condition  of  Jews  in  Russia.     (For.  Rel.,  1906,  1296-1314.) 
Refusal  of  Russian  consular  officers  to  vise  United  States  passjjorts  in  favor 

of  Jews.     (P^or.  Rel.,  1895,  1056-74.) 

Literary  Property. 

Le  mouvement  en  faveur  de  la  protection  des  auteurs  etrangers  en  Russie.     Une 

etude  de  Al.  Pilenco.     (11  Le  Droit  d'auteur,  1898,  58-61.) 
La  legislation  russe  sur  les  droits  d'auteur,  par  Georges  Herlant.     (35  R.  D.  L, 

1903,  380-427.) 
Russie.     Propriete   litteraire.     Les  droits   des   auteurs   etrangers.     Refus   de 

protection.     (36  Clunet,  1909,  889-892.) 
Russia  enacted  a  new  copyright  law  on  March  20th,  1911.     (39  Clunet,  1912, 

647-660.) 

Poland 

fitude  sur  la  situation  des  etrangers  en  Pologne,  avant  et  apres  son  partage. 
Par  Lucien  Lipinski.     (16  Bull,  de  la  Soc.  de  16g.  comp.,  1886-87,  404-437.) 

SERVIA 

Aliens  in  GeneraL 

.De  la  condition  juridique  des  etrangers  en  Serbie,  par  G.  Pavlovitsch.  (11 
Clunet,  1884,  5-28,  141-162.) 

Divorce— Jurisdiction. 

De  la  juridiction  competente  en  Serbie  pour  connaitre  des  actions  en  divorce 
ou  en  nullite  du  mariage  form^es  par  des  6poux  Strangers,  par  Jivoin  P^ritch. 
(27  Clunet,  1900,  742-748.) 

Succession. 

De  la  capacite  de  succeder  des  sujets  roumains  en  Serbie,  par  Jivoin  Peritch. 
(2  Nouv.  rev.  prat,  de  dr.  int.  \mv6,  1906,  145-152,  193-205.) 

SIAM 

Aliens  in  General. 

Duplatre,  E.     Condition  des  etrangers  au  Siam.     Grenoble,  1912. 

De  la  condition  juridique  des  etrangers  au  Siam,  par  G.  Padoux.     (35  Clunet, 

1908,  693-713,  1037-1054.) 
Do  la  condition  juridique  des  etrangers  et  de  I'organisation  judiciaire  au  Siam, 

par  A.  Dauge.     (27  Clunet,  1900,  461-477,  704-716.) 
De  la  confection  au  Siam  des  codes  applicables  aux  nationaux  et  aux  Strangers, 

par  Louis  Riviere.     (39  Clunet,  1912,  413-419.) 


APPENDIX  909 

Expulsion. 

Droit  d'explueion  des  Grangers.     (37  Clunet,  1910,  360-361.) 

Extraterritorial  Jurisdiction. 

Du  regime  juridictionnel  des  Fran^ais  et  des  Anglais  au  Siam,  par  G.  Padoux. 

(37  Clunet,  1910,  78-81.) 
See  also  Extraterritoriality. 

Marriage. 

Law  of  January  9,  1898  concerning  marriages  of  foreigners  in  Siam.     (90  St. 

Pap.,  1897-98,  1075-76.) 
Loi  du  9  Janvier  1898  sur  la  calibration  des  manages  d'etrangers  au  Siam.     (28 

Clunet,  1901,  188-189.) 

SPAIN 

General  Works. 

Gestoso  y  Acosta,  Luis.     Nuevo  tratado  de  derecho  internacional  privado. 

Valencia,  1913. 
Torres-Campos,     Manuel.     Principios     de    derecho     internacional     privado. 

Madrid,  1883. 
Torres  Campos,  Manuel.     Elementos  de  derecho  internacional  privado.     4.  ed. 

Madrid,  1913. 
Conde  y  Luque,  R.     Derecho  internacional  privado.     2nd  ed.     Madrid,  1907- 

1910.     2  V. 
Fernandez  Prida,  J,     Derecho  internacional  privado.     Valladolid,  1896. 

Aliens  in  General. 

Castro  y  Casaleiz  Antonio  de.     Estudios  de  derecho  internacional  privado. 

Conflictos  de  nacionalidad.     Condici6n  del  extranjero.     Madrid,  1901. 
Conde  y  Luque,  Rafael.     Oficios  de  derecho  internacional  privado.     Nacionali- 
dad.    Situacion  del  extranjero.     Madrid,  1901. 
SaHnas,  Jose.     Manual  des  droits  civils  et  commerciaux  des  Frangais  en  Espagne 

et  des  etrangei-8  en  general,  comprenant  toutes  les  lois,  traites  et  r^glements 

de  police  qui  s'y  rapportent.     2.  ed.     Paris,  1829. 
Histoire  de  la  condition  des  etrangers  dans  la  legislation  espagnole,  par  Torres 

Campos.     (18  Clunet,  1891,  108-119.) 
Historia  juridica  del  extranjero  en  Espafla  hasta  la  conquista  arabe,  por  Rafael 

Conde  y  Luque.     (29  Rev.  de  los  tribunales,  1895,  657-661,  673-677.) 
Le  droit  international  prive  dans  le  nouveau  code  civil  espagnol,  par  Eugene 

Audinet.     (18  Clunet,  1891,  1106-29.) 

Expulsion. 

Castro  y  Casaleiz,  Antonio  de.  El  derecho  de  espulsion  ante  el  derecho  inter- 
nacional y  la  legislaci6n  espaflola.     Madrid,  1895. 

Le  droit  d'expulsion  des  Strangers  en  Eepagne,  par  Torres  Campos.  (29  Clunet, 
1902,  291-295.) 


910  APPENDIX 

De  la  expulsidn  de  los  extranjeros,  par  Francisco  Lastres.     (43  Rev.  de  los 

tribunales,  1909,  625-628.) 
De  I'expulsion  des  etrangers  en  Espagne,  par  Franciaco  Lastres.     (37  Clunet, 

1910,  369-374.) 

Foreign  Corporations. 

Condition  juridique  des  soci^tes  ^trangdres  en  Espagne,  par  Francisco  Lastres. 
(33  Clunet,  1906,  273-278.) 

Foreign  Judgments. 

Execution  des  sentences  rendues  par  les  tribunaux  etrangers  d'apres  la  I^gisla- 
tion  et  la  jurisprudence  espagnole  et  hispano-americaine.  (Transl,  by 
G.  de  Tizac  from  Spanish  article  by  Victor  Cobian,  39  Clunet,  1912,  1059- 
71;  and  40  Clunet,  1913,  89-101.) 

Industrial  Property. 

La  loi  espagnole  du  16  mai  1902  sur  la  propriety  industrielle,  par  Paul  Carpentier. 
(31  Clunet,  1904,  832-841.) 

Taxation. 

L'impot  sur  les  droits  reels  dans  la  legislation  espagnole  au  point  de  vue  inter- 
national, by  J.  de  D.  Trias.     (9  R.  D.  I.  prive,  1913,  80-86.) 

SWEDEN 

General  Works. 

Reuterskjold,  Carl  L.  Handbok  i  svensk  privat  internationell  ratt.  Upsala  and 
Stockholm,  1912. 

Aliens  in  General. 

De  la  condition  legale  des  etrangers  en  Su6de,  par  P.  Dareste.     (7  Clunet, 

1880,  434-438.) 
De  la  condition  juridique  des  etrangers  en  SuMe,  par  C.  A.  Reuterskiold.     (33 

Clunet,  1906,  577-595.) 

Foreign  Judgments. 

De  I'execution  des  jugements  etrangers  en  Su&de,  par  K.  d'Olivecrona.  (7 
Clunet,  1880,  83-87.) 

Marriage,  Divorce  and  Guardianship. 

Le  mariage  des  etrangers  en  Su6de  et  des  Suedois  k  I'etranger,  par  K.  d'Olive- 
crona.    (10  Clunet,  1883,  343-362.) 

Le  mariage,  le  divorce  et  la  tutelle  d'apres  le  droit  international  priv6  suedoia, 
par  Reuterskiold  et  L.  Beauchet.     (38  Clunet,  1911,  402-413.) 

Mining  and  Real  Property. 

fttrungers.     Mines  (concession  de).     (28  Clunet,  1901,  1077-78.) 
Decree  of  Nov.  9,  1889,  concerning  state  citizenship  and  the  acquisitiou  of 
land  by  aliens,  etc.     (81  St.  Pap.,  1889-89,  598-599.) 


APPENDIX  911 

Immeublcs  (acquisition  d').     f^trangrrs.    Congregations  religieuees.    Autorisa- 

tion.     i28Clunet,  1901,414-415.) 
See  also  Denmark  and  Norway. 

SWITZERLAND 

General  Works. 

Roguin,  Ernest.    Conflits  des  lois  suisses  en  matiere  international  et  inter- 

cantonale.     Lausanne,  1.S91. 
Meili,  Friedrich.     Das  intemationale  Civil-  und  Handelerecht.     Zurich,  1902. 

2  V.  in  1. 
Same.     Translated   into  English,   by   A.   K.   Kuhn.     International  civil  and 

commercial  law.     New  York,  1905. 
Meili,  Friedrich.     Das  Internationale  Zivilprozessrecht  auf  Grund  der  Theorie, 

Gesetzgebung  und  Praxis.     Zurich,  1904.     2  v. 
Meili,  F.,  u.  Mamelok,  A.     Das  intemationale  Privat-  und  Zivilprozessrecht  auf 

Grund  der  Haager  Konventionen.     Zurich,  1911. 

Aliens  in  General. 

Das   intemationale   Recht   im   schweizerischen    Zivilgesetzbuche,    von   Alfred 

Sie^wart.     (Jahrb.  f.  d.  int.  Rechtsverkehr,  1912-13,  121-127.) 
Le  droit  international  prive  dans  la  legislation  Suisse,  par  Ernest  Lehr.     (7  R.  D. 

1.  prive,  1911,  241-258.) 
Escher,    C.     Das   schweizerische   interkantonale   Privatrecht   auf   Grund   des 

Bundesgesetzes  betreffend   die   civilrechthchen   Verhaltnisse  der   Nieder- 

gelassenen  und  AufenthaUer  (vom  25  Juni  1891).     Zurich,  1895. 
Des  Gouttes,  Paul.     Essai  d'interpretation  du  titre  III  de  la  loi  federale  du 

25  juin  1891 ;  des  rapports  de  droit  civil  des  etrangers  en  Suisse.    Bale,  1897. 

(Extrait  de  la  Ztschr.  f.  Schweiz.  Recht,  N.  F.  16.) 
Langhard,  J.     Die  politische  Polizei  der  Schweizerischen  Eidgenossenschaft. 

Bern,  1909. 
Strekeisen,   Hans.     Die   offentlich-rechtliche    Stellung    der  Auslander  in  der 

Schweiz.     Zurich,  1912. 
Langhard,  J.     Das  Xiederlassungsrecht  der  Auslander  in  der  Schweiz.     Zurich, 

1913. 
Sauser-Hall,  G.     Nationalisation  des  etrangers  en  Suisse.     Neuchatel,  Paris, 

1914. 
Les  droits  des  etrangers  en  Suisse  et  le  congres  socialiste  universel,  par  Alois 

d'Orelli.     (14  R.  D.  I.,  1882,  473-489.) 
L'mcorporation  des  etrangers  en  Suisse.     Le  rapport  de  M.  Goettisheim  pour- 
suit  ainsi:  3  moyens  proposes  pour  remedier  a  I'accroissement  du  nombre 

des  etrangers.     (7  R.  D.  I.  prive,  1911,  463-472.) 
Ueber  die  Stellung  der  Auslander  im  schweizerischen  Bundesstaatsrecht,  von 

Julius  Hartmann.     (48  Ztschr.  f.  schweiz.  Recht,  1907,  98-187.) 
Die  civilrechtliche  Stellung  der  Auslander  in  der  Schweiz  nach  dem  Bundes- 

gesetz  vom  25.  Juni  1891,  von  P.  Wolf.     (35  Ztschr.  f.  schweiz.  Recht, 

1894,  1-54,  319-.380.) 


912  APPENDIX 

Die  Erteilung  ties  Schweizerbiirgerrechts  an  Auslander  nach  detn  Bundesgeaetze 
vom  3  Juli  1876,  voa  A.  Imhof.  (42  Ztschr.  f.  schweiz.  Recht,  1901,  121- 
169.) 

Expulsion. 

Kebedgy.     Die  Ausweisung  der  Auslander  in  der  Schweiz.     1905. 
De  I'expulsion  des  etrangers  en  Suisse,  par  Alf.  Chantre.     (21  Clunet,  1894, 
978-985.) 

Foreign  Judgments. 

De  I'execution  des  jugements  etrangers  en  Suisse,  par  Ernest  Roguin.  (10  Clu- 
net 1883,  113-135.) 

De  r^tat  actuel  de  la  jurisprudence  en  Suisse  en  mati^re  de  jugements  Strangers, 
by  E.  Dupraz.     (41  Clunet,  1914,  409-420,  1185-98.) 

Industrial  Property. 

Des  droits  des  etrangers  en  Suisse  en  matiere  de  marques  de  fabrique  et  de 
commerce,  par  Ch.  G.  Konig.     (10  Clunet,  1883,  585-604.) 

Marriage  and  Divorce. 

Salis-Mayenfeld,  Ludwig  R.     Ehescheidungs-  und  Ehenichtigkeitssachen  aus- 

landischer  Ehegatten  in  der  Schweiz.     Basel,  1888. 
Picot,  Ernest.     De  la  competence  des  tribunaux  suisses  a  se  nantir  des  actions, 

en  nuUite  de  mariage  et  en  divorce  entre  etrangers  domicili6s  en  Suisse. 

Bale,  1888. 
Du  divorce  des  6poux  Strangers  en  Suisse  et  des  6poux  suisses  k  I'etranger,  par 

Th.  Barrilliet.     (7  Clunet,  1880,  347-367.) 
Du  mariage  et  du  divorce  des  etrangers  en  Suisse  et  des  Suisses  k  I'etranger, 

par  Alfred  Martin.     (24  Clunet,  1897,  738-760.) 

TURKEY 

Aliens  in  General. 

P^lissie  du  Rausas,  G.     Le  regime  des  capitulations  dans  I'Empire  ottoman. 

Paris,  1910-11.    2  v. 
Brown,  PhiUp  M.     Foreigners  in  Turkey;  their  juridical  status.     Princeton, 

1914. 
Arminjon,  Pierre,     fitrangers  et  proteges  dans  I'Empire  ottoman.     Paris,  1903, 

V.  1. 
Belart,  Hans.     Der  Schutzgenosse  in  der  Levante.     Mit  besonderer  BerUck- 

sichtigung  der  Stellung  der  Schweizerbiirger  als  Schutzgenossen  befreunde- 

ter  Staaten  in  der  Levante.     Brugg,  1898. 
Rey,  Francis.     De  la  protection  diplomatique  et  consulaire  dans  les  ^chelles  du 

Levant  et  de  Barbaric.     Paris,  1899. 
Turkish  capitulations  and  the  status  of  British  and  other  foreign  subjects  resid- 
ing in  Turkey,  by  Edwin  Pears.     (21  Law  Quar.  Rev.  1905,  408-425.) 
Die  rechtliche  Stellung  der  Fremden  in  der  Tilrkei.     Vortrag  des  Generalkonsulfl 


APPENDIX  913 

A.  D.,  Dr.  P.  Schroeder.     (7  Bliitt.  f.  vergl.  Rechtswissenschaft,   1911, 

171-191.) 
Situation  des  etrangers  en  Turquie.     Atteinte  aux  privileges  des  capitulations. 

(17  R.  G.  D.  I.  P.,  1910,  276-278.) 
La  protection  en  Turquie  et  en  Egypte,  par  P.  Arininjon.     (16  Rev.  dr.  pub., 

1901,  5-44.) 
Status  and  treatment  in  Turkey  of  naturalized  Americans  of  Turkish  origin. 

(For.  Rel.,  1894,  752-765.) 
De  I'autorite  competente  pour  statuer  en  Turquie  sur  les  questions  relatives  i 

la  nationality  et  des  conflits  de  lois  en  matiere  de  nationalite,  par  E.  R. 

Salem.     (3  R.  D.  I.  prive,  1907,  25-42,  654-660.) 

Courts^-Consular  and  Ottoman. 

Consular  jurisdiction  in  the  Levant  and  the  status  of  foreigners  in  the  Ottoman 
law  courts,  by  Travel's  Twiss.  (Rep.  of  8th  Ann.  Conf.,  1880,  of  the  Asso. 
for  the  Reform  and  Codification  of  the  Law  of  Nations,  27-51.) 

Les  etrangers  devant  les  tribunaux  consulaires  et  uationaux  en  Turquie,  par 

E.  R.  Salem.     (18  Clunet,  1891,  393-425,  795-809.) 

De  la  competence  des  tribunaux  ottomans  pour  juger  les  etrangers  qui  com- 

mettent  en  Turquie  un  acte  delictueux  envers  un  sujet  ottoman,  par  E.  R. 

Salem.     (33  Clunet,  190(),  65-93.) 
La  justice  ottomane  dans  ses  rapports  avec  les  puissances  etrangers,  par  A. 

Mandelstam.     (14  R.  G.  D.  I.  P.,  1907,  5-148,  534-600;  15  R.  G.  D.  L  P., 

1908,  329-384.) 
Ueber  die  Exterritorialitiit  der  Auslander  in  der  Tlirkei  mit  Riicksicht  auf  die 

Gerichtsbarkeit  in  Civil-  und  Strafprozessen,  von  S.  Antonopoulos  and 

F.  Mej'er.     (1  Jahrb.  der  int.  Vereinig.  f.  vergl.  Rechtswissenschaft,  1895, 
95-190.) 

De  la  competence  des  tribunaux  ottomans  a  I'egard  des  Strangers,  par  R.  Salem. 

(20  Clunet,  1893,  41-71.) 
Des  tribunaux  civils  ottomans  de  premiere  instance  en  ce  qui  concerne  les 

etrangers,  par  Th.  Papasian.     (41  R.  D.  L,  1909,  613-626.) 
Le  traite  turco-belge  de  1838  et  la  competence  en  matiere  p6nale  des  autorites 

ottomanes   envers   les   Strangers,    par   Gabriel    Effendi    Noradounghian. 

(38  R.  D.  I.,  1906,  119-135.) 

Foreign  Corporations. 

Polyvios,  Pericles  J.     Condition  legale  des  soci6t4s  ^trangeres  dans  I'Empire 

Ottoman.     Paris,  1913. 
Des  societes  etrangeres  en  Turquie,  par  E.  R.  Salem.     (35  Clunet,  1908,  1002- 

13.) 
De  la  condition  legale  des  societes  etrangeres  en    Turquie,    par   R.    Salem. 

[Revue  prat,  des  societes  (Bruxelles),  1889,  177.] 
Right  of  foreign  corporations  to  own  real  estate  in  Turkey.     (For.  Rel.,  1905, 

880-881.) 
Restrictions  on  American  life  insurance  companies  in  Turkey.     (For.  Rel., 

1902,  1026-41.) 


914  APPENDIX 

Foreign  Judgments. 

De  I'ex^cution  des  jugemente  dtrangere  en  Turquie,  par  E.  R.  Salem.    (10 

Clunet,  1888,  603-619.) 

Industrial  and  Literary  Property. 

De  la  protection  16gale  des  marques  ^trang^ree  en  Turquie,  par  E.  R.  Salem. 

(23  Clunet,  1896,  762-780.) 
De  la  protection  legale  des  marques  ^trangeres  en  Turquie,  par  E.  R.  Salem. 

(15  Clunet,  1888,  719-731.) 
Du  droit  des  Strangers  en  Turquie  en  matiere  de  marques  de  fabrique  et  de 

commerce,  par  C^sar  Bonnet.     (26  Clunet,  1899,  283-303.) 
Propriety  litt6raire  et  artistique.       Protection  des  auteurs  Strangers.     Effort 

de  la  jurisprudence.     Insuffisance  du  droit  positif.     (Aff.  Sewelli.)     (37 

Clunet,  1910,  364-365.) 

Jews. 

Rights  of  Jews  to  three  months'  sojourn  in  Palestine.      (For.  Rel.,  1901,  516- 

518.) 
Sojourn  of  foreign  Israelites  in  Palestine.     (For.  Rel.,  1898,  1086-95.) 
Purchase  of  real  estate  in  Palestine  by  foreign  Jews.     (For.  Rel.,  1898,  1103- 

08.) 

Marriage  and  Divorce. 

Du  mariage  et  du  divorce  des  Ottomans  jI  r6tranger  et  des  Strangers  en  Turquie, 

par  Andre  Mandelstam.     (30  Clunet,  1903,  86-100.) 
Du  mariage  des  etrangers  en  Turquie,  par  R.  Salem.     (16  Clunet,  1889,  23-39, 

381-396.) 

Real  Property. 

Rights  of  foreigners  to  hold  real  property  in  Turkey.     Law  of  June  18,  1867. 

(58  St.  Pap.,  1867-68,  22-23.) 
Du  r6gime  de  la  propriety  immobiliere  et  du  droit  pour  les  (Strangers  d'acqu6rir 

en  Turtiuie,  par  F.  Rougon.     (13  Clunet,  1886,  57-67,  527-537.) 
Holding  of  real  estate  in  Turkey  by  persons  of  Ottoman  birth  who  have  changed 

their  nationality.     (For.  Rel.,  1906,  1410-12.) 
Immeubles.     Etrangers.     Succession  (droit  de).     Les  Strangers  et  la  propri^t^ 

en  Turquie.     (33  Clunet,  1906,  958-959.) 
Les  dernieres  reformes  en  Turquie  concernant  les  immeubles  appartenant  aux 

nationaux  et  aux  etrangers,  by  A.  Tarica.     (40  Clunet,  1913,  823-829.) 
De  la  condition  juridique  des  Strangers  en  Turquie  et  du  droit  pour  eux  d'y 

acqu^rir  des  immeubles,  by  J.  Penser.     (40  Clunet,  1913,  492-501 ;  843-859.) 
(Numerous  treaties  give  citizens  of  foreign  powers  the  right  to  acquire  and  hold 

real  property.     Many  of  them  are  printed  in  British  and  Foreign  State 

Papers.) 

Succession. 

Macchioro,  Gino  A.    Lo  straniero  ed  il  regime  delle  euccessioni  in  diritto  muBul- 
mano.     Roma,  1903, 


APPENDIX  915 

Zohrab,  Kircor,  De  rempfichement,  en  droit  ottoman,  de  recevoir  par  suc- 
cession pour  cause  de  divergence  de  nationality.     Paris,  1908. 

Influence  de  la  difference  de  nationality  sur  les  successions  en  Turquie,  par 
G.  Cluzel.     (36  Clunet,  1909,  430-439.) 

Du  droit  des  etrangers  de  transmettre  par  succession  en  Turquie,  par  E.  R. 
Salem.     (25  Clunet,  1898,  665-674,  1030-46.) 

De  la  succession  immobiliere  des  etrangers  en  Turquie,  par  E.  R.  Salem.  (26 
Clunet,  1899,  47-56,  470-494.) 

Du  droit  des  etrangers  de  recueillir  par  succession  en  Turquie,  par  E.  Salem. 
(26  Clunet,  1899,  961-977.) 

Successions  testamentaires  des  Strangers  en  Turquie,  par  M.  Philaretos.  (40 
R.  D.  I.,  1908,  198-205.) 

See  also  Extraterritoriality. 

UNITED  STATES 

Aliens  in  General. 

MacClintock,  Samuel.     Aliens  under  the  federal  laws  of  the  United  States. 

Chicago,  1909. 
Terry,  Edw.  S.     Laws  of  the  various  states  of  the  United  States  of  America 

concerning  aliens,  estates,  descent  and  distribution,  powers  of  attorney, 

wills,  etc.     New  York,  1908. 
Aliens.     Their  rights  in  the  United  States  defined  in  "Wise,  John  S.     A  treatise 

on  American  citizenship.     Northport,  1906,"  pp.  267-275. 
The  principles  governing  national  legislation  affecting  aliens,  by  James  Barclay, 

Proceedings,  Am.  Soc.  Int.  Law,  1911,  57-66. 
Relation  of  the  alien  to  the  administration  of  the  civil  and  criminal  law,  by 

Gino  C.  Speranza.     (1  Journ.  of  Crim.  Law,  1910,  563-572.) 
Treatment  of  aUens  in  the  criminal  courts  (Study  of  police  records  of  Chicago 

showing  how  the  foreigners  are  defrauded  by  the  lawyers  and  police). 

By  Grace  Abbott.     (2  Journ.  of  Crim.  Law,  1911,  554-567.) 
The  rights  and  remedies  of  aliens  in  national  courts,  by  F.  R.  Coudert.     Pro- 
ceedings, Am.  Soc.  Int.  Law,  1911,  192—200. 
The  effect  of  the  most-favored-nation  clause  on  the  status  of  aliens,  by  Dwight 

Harris,  Proc.  Am.  Soc.  Int.  Law,  1911,  228-240;  and  by  S.  B.  Crandall, 

ibid.,  240-253. 

Admission. 

Immigration  legislation.  1.  Federal  immigration  legislation.  2.  Digest  of 
immigration  decisions.  3.  Steerage  legislation,  1819-1908.  4.  State 
immigration  and  alien  laws.  Washington,  1911.  (Reports  of  the  Immi- 
gration Commission,  vol.  39,  Sen.  Doc.  758,  61st  Cong.,  3rd  sess.) 

Immigration  laws.     Rules  of  November  15,  1911.     Washington,  1912. 

Bouv^,  Clement  L.  A  treatise  on  the  laws  governing  the  exclusion  and  expul- 
sion of  aliens  in  the  United  States.     Washington,  1912. 

The  immigration  act  and  returning  resident  aliens,  by  Clement  L.  Bouv6.  (59 
Univ.  of  Penn.  Law  Rev.,  1910-11,  359-372.) 


916  APPENDIX 

Reports  on  the  status  of  aliens  in  the  U.  S.,  with  correspondence  on  the  admission 
of  destitute  aliens  and  state-aided  immigrants  into  United  States.  (Parlia- 
mentary Papers,  1887-91,  C.  5109;  C.  5170;  C.  5261;  G.  5323;  C.  5579; 
C.  5969;  C.  6512.) 

Moore's  Dig.  IV,  ch.  13,  pp.  1-238. 

Immigration  regulations  for  the  Island  of  Porto  Rico.  War  Department, 
June  7,  1899.     Washington,  1899. 

Immigration  regulations  for  the  PhiUppine  Islands.  June  7,  1899.  Washington, 
1899. 

Admission  and  restrictions  upon  the  admission  of  aUens,  by  Charles  Earl, 
Proceedings  Amer.  Soc.  Int.  Law,  1911,  66-87;  by  T.  Marburg,  ibui.,  88-95; 
by  C.  L.  Bouve,  ibid.,  95-116, 

Witt,  A.  de.  The  power  of  the  governor  general  of  the  Philippine  Islands  to 
deport  or  expel  aliens.     Manila,  1910. 

Judicial  review  of  administrative  action  in  immigration  proceedings,  by  Thos.  R. 
Powell.     (22  Harvard  L.  Rev.,  1908-09,  360-366.) 

The  constitutional  question  involved  in  the  exclusion  of  aliens  by  the  executive. 
(22  Harvard  L.  Rev.,  1908-09,  221-222.) 

The  new  citizenship  law  (editorial  comment).  (1  A.  J.  I.  L.,  1907,  458- 
462.) 

Naturalization  laws  and  regulations,  December,  1914,  Washington,  1915. 

Treaty,  laws,  and  regulations  governing  the  admission  of  Chinese.  Regulations 
approved  February  26,  1907.  Ed.  of  February,  1909  (embodying  amend- 
ments to  rule  39).     Washington,  1909.     Issued  periodically. 

The  Chinese  exclusion  laws.  Cases.  (Butler,  C.  H.  Treaty  making  power. 
New  York,  1902.     Vol.  2,  §§  379-380,  pp.  87-123.) 

Exclusion  laws.  Extension  to  Philippine  Islands.  (For.  Rel.,  1900,  402-403; 
For.  Rel.,  1899,  207;  Sen.  Doc,  No.  397,  56th  Cong.,  1st  sess.) 

Foreign  Corporations. 

De  la  situation  legale  des  societ^s  etrangeres  aux  Etats-Unis,  par  Ch.  Loebe. 
(37  Clunet,  1910,  96-99.) 

Industrial  and  Literary  Property. 

De  la  protection  accordee  actuellement  par  les  Etats-Unis  aux  auteurs  etrangers. 

(37  Clunet,  1910,  120-123.) 
Propri6te  artistique  aux  Etats-Unis.     Artiste  etranger.     Formalite  pour  ob- 

tenir  protection.     (25  Clunet,  1898,  889-891.) 

Treaty  Rights. 

Chaiiihcrliii,  J.  L.     The  position  of  the  federal  government  of  the  United  States 

in  regard  to  crimes  committed  against  the  subjects  of  a  foreign  nation 

within  the  states. 
Reports  of  the  American  Bar  Association  for  1891,  1892,  1893. 
The  rights  of  foreigners  in  the  United  States  in  case  of  conflict  between  federal 

treaties  and  state  laws.     Discussion  by  Professors  Gregory,  Ion  and  others. 

(1  Proceedings  of  Amer.  Soc.  Int.  Law,  1907,  150-214.) 


APPENDIX  917 

Aliens.  Right  of  inheritance,  conflict  of  laws,  federal  treaties  and  state  laws. 
(45  Am.  Law  Reg.  &  Rev.,  1897,  187-188  and  cases  there  cited.) 

International  law.  Treat}'  rightd  of  foreigners.  Report  of  committee.  (15 
American  Bar  Ass'n  Report,  1892,  395-421;  16  American  Bar  Ass'n  Report, 
1893,  323-345.) 

The  prerogative  right  of  revoking  treaty  privileges  of  alien  subjects,  by  Thomas 
Hodgins.     (29  Can.  L.  T.,  1909,  105-129.) 

The  Japanese  school  incident  from  the  point  of  view  of  international  and  con- 
stitutional law,  by  Theodore  P.  Ion.     (5  Mich.  L.  R.,  1906-07,  326-343.) 

Rights  of  the  Japanese  in  California  schools.  (20  Harv.  L.  R.,  1906-07,  337- 
339.) 

The  real  questions  under  the  Japanese  treaty  and  the  San  Francisco  school 
board  resolution,  by  Ehhu  Root.     (1  A.  J.  I.  L.,  1907,  273-286.) 

Etats-Unis  d'Amerique  et  Japon.  L'excliision  des  eleves  japonais  des  ecoles 
publiques  ordinaires  de  San  Francisco.  Droit  des  etrangers  aux  services 
publics  de  I'^tat  de  leur  residence.  Situation  respective  de  la  confedera- 
tion americaine  et  des  etats  particuhers  en  ce  qui  concerne  les  relation.s 
Internationales,  par  J.  Barthelemy.     (14  R.  G.  D.  I.  P.,  1907,  636-685.) 

Johnson,  H.  B.  Discrimination  against  Japanese  in  California.  Introduction 
by  D.  S.  Jordan.     Berkeley,  1907. 

Rights  of  ahens:  a  study  in  treaty  making,  by  Edwin  Maxey.  (16  American 
Lawyer,  1908,  171-178.) 

On  treaty  rights,  see  also  discussions,  supra,  §§  45,  91. 

Workmen's  Compensation. 

The  equities  of  non-resident  alien  dependents  under  workmen's  compensation 
laws,  by  C.  C.  Hyde  and  C.  H.  Watson.     (7  Illinois  Law  Rev.  414-426.) 

LATIN-AMERICA 

Admission. 

Laws  of  the  American  republics  relating  to  immigration  and  the  sale  of  pubhc 
lands.  [Washington,  1896.]  (International  Bureau  of  the  American  Re- 
publics, Bulletin,  No.  53.) 

Extradition. 

Die  Auslieferungsvereinbarung  der  mittelamerikanischen  Republiken  vom  20 
Dez.  1907,  von  W.  Mettgenberg.  (28  Ztschr.  f.  d.  ges.  Strafrechtswissen- 
schaft,  1908,  84&-860.) 

Foreign  Judgments. 

Execution  des  sentences  rendues  par  les  tribunaux  Strangers  d'aprfes  la  legisla- 
tion et  la  jurisprudence  espagnole  et  hispano-americaine,  by  V.  Cobian, 
trans,  by  de  Tizac.     (39  Clanet,  1912,  1059-71 ;  40  Clunet,  1913,  89-101.) 

Practice  of  Professions. 

Practice  of  the  learned  professions.  Report  of  Second  Pan-American  Confer- 
ence.    Mexico,  1902. 


918  APPENDIX 

See  Resolutions  of  the  Pan-American  Congresses  at  Montevideo,  1889,  Mexico, 
1901,  Rio  Janeiro,  1906,  Buenos  Aires,  1910. 

ARGENTINE 
General  Works. 

Alcorta,  A.  Curso  de  derecho  internacional  privado.  Buenos  Aires,  1887-92. 
3  V. 

Aliens  in  General. 

Daireaux,  Emile.     La  vie  et  les  moeurs  a  la  Plata.     Paris,  1888.     2  v. 

De  la  condition  legale  des  Strangers  dans  la  Republique  Argentine,  par  E. 

Daireaux.     (13  Clunet,  188b,  286-298,  414-424.) 
Passicot,  Juan.     Los  extranjeros  en  la  relaci6n  del  derecho  politico  argentino, 

Buenos  Aires,  1884. 
Lehmann,  B.     Die  Rechtsverhaltnisse  der  Freniden  in  Argentinien.     Buenos 

Ay  res,  1889. 
Saldias,  A.     Les  etrangers  residents  au  Rio  de  la  Plata  devant  le  droit  inter- 
national.    Paris,  1889. 
De  Valicourt,  Cointe  ch.     L'cniigrant  fran^ais  et  sa  condition  en  Argentine. 

Paris,  1898.     (Extract  from  60  Rev.  gen.  d'administration,  1897,  390-401; 

61  Rev.  gen.  d'administration,  1898,  129-145,  257-272,  395-414.) 
Restelli,   Ernesto.     Adquisici6n  de  la  nacionalidad  en  el  derecho  argentino. 

Buenos  Aires,  1911. 
Costa,  Luis  A.  Podesta.     El  extranjero  en  la  guerra  civil.     Buenos  Aires,  1913 

Admission. 

Ley  de  inmigracidn  y  reglamento  de  desembarco  de  inmigrantes.     PublicaciCn 

oficial.     Buenos  Aires,  1907. 
Special  studies  on  the  position  of  aliens  in  Argentine  by  Diaz  Guerra,  J.  N. 

(1886),  Mor6n,  D.  R.  (1887),  Quiroga,  P.  (1889),  Videla,  R.  B.  (1889), 

Serrey,  C.  V.  (1894),  Ortiz,  F.  J.  (1894),  Obejero,  B.  J.  (1894),  Diaz,  L.  J. 

(1896),  and  Leguizam6n,  J.  B.  (1904). 

Decedents'  Estates. 

Decree  of  President  in  re  estates  of  intestate  foreigners.     Buenos  Aires,  Nov.  19, 

1862.     (53  St.  Pap.,  1862-63,  762-766.) 
Law  respecting  the  testamentary  or  intestate  property  of  foreigners.     Buenos 

Aires,  Sept.  29,  1865.     (58  St.  Pap.,  1867-68,  455-456.) 
L'intervention  des  consuls  dans  las  successions,  par  Alcides  Calandrelli.     (1  Bull. 

arg.  de  dr.  int.,  1903-05,  182-194.) 
Jmisdiction  over  estates  of  American  citizens  dying  in  the  Argentine  Republic. 

{VoT.  Rel.,  1908,  6-10.) 
See  also  Succession. 

Expulsion. 

Dura,  Francisco.  Naturalisacidn  y  expulsibn  de  extranjeros.  Actos  6  in- 
tentos  legislativos  sobre  estas  materias  en  la  Republica  Argentina.  Con 
un  estudio  de  legislaci6n  comparada.     Buenos  Aires,  1911. 


APPENDIX  919 

Groussac,  Carlos.     Expul8i6n  de  extraajeros.     Buenoa  Aires,  1903. 
Law  of  November  22,  1902,  concerning  the  expulsion  of  foreigners.     Buenos 
Aires,  Nov.  22,  1902.     (95  St.  Pap.,  1901-02,  773.) 

Foreign  Corporations. 

Ramirez,  C.  G.     Derecho  internacional  jurisdiccional.     Sociedades  andnimas 

extranjeros.     Buenos  Aires,  1895. 
De  la  condition  dans  la  R6publique  Argentine  des  societds  organisees  en  pays 

ctranger,  par  E.  S.  Zeballos.     (33  Clunet,  I'KKi,  604-018,  1025-32.) 
Same  in  (2  Bull.  arg.  de  dr.  int.  prive,  1906,  174-189;  2  Bull.  arg.  de  dr.  int. 

prive,  1907,  260-267.) 
Sociedades  andnimas  extranjeras.     Interpretacion  del  art.  286,  del  C6digo  de 

comercio.     Buenos  Aires,  1896. 
L6pez,  Vicente  F.     Las  companias  extrajeras  de  seguros  ante  la  administraci6n 

nacional.     Buenos  Aires,  1898. 
Sociedades  an6nima8  extranjeras.     (Reformas  al  Codigo  de  Comercio.)     Buenoa 

Aires,  1911. 
Les  societes  commerciales  dans  le  droit  international  privd;  la  legislation  argen- 
tine,  par  A.  Calandrelli.      (1  Bull.  arg.   de  dr.  int.   prive,   1904,   342- 

349.) 

Foreign  Judgments. 

De  r  execution  des  jugements  etrangers  dans  la  R6publique  Argentine,  par 
Alberto  Palomeque.     (14  Clunet,  1887,  539-558.) 

Literary  and  Industrial  Property. 

De  la  nouvelle  legislation  argentine  concemant  les  droits  des  auteurs  etrangers, 

par  Emile  Daireaux.     (38  Clunet,  1911,  449-456.) 
La  propriete  litteraire  et  artistique  en  Argentine  dans  les  rapports  internationaux 

par  Emile  Daireaux.     (35  Clunet,  1908,  657-673.) 
La  propriete  litteraire  dans  la  Republique  Argentine,  par  Roberto  Ancizar. 

(31  Clunet,  1904,  850-853.) 
Laspuir,  E.  S.,  and  Duffy,  J.  L.     Marcas  de  fabrica  y  de  comercio:  las  marcas 

extranjeras.     Buenos  Aires,  1912. 

Practice  of  Professions. 

Laws  regulating  the  practice  of  the  professions  of  engineers,  architects,  agricul- 
turists, pharmacy,  dentistry  and  medicine,  etc.     (For.  Rel.,  1905,  35-38.) 

Succession. 

Succession  d'dtrangers.  (Tribunal  civil  de  premiere  instance  du  d^partement 
du  centre  de  la  province  de  Buenos  Aires)  par  Jos^  Antonio  de  Oro.  1 
Bull.  arg.  de  dr.  int.  prive,  1904,  277-282.) 

BOLIVIA 

Reglamento  de  iomigracidn  libre.     La  Paz,  1907. 


920  APPENDIX 

BRAZIL 

General  Works. 

Pimento  Bueno,  Jos6  Antonio.     Direito  internacional  privado.    Rio  de  Janeiro, 

1863. 
Bevilacqua.     Principios  elementares  de  direito  internacional  privado.     Bahia, 
1906. 

Aliens  in  General. 

Agresti,    L.     La  condizione  dello  straniero  nel  Braeile.     Memoria  letta  all' 

Accademia  Pontaniana,  3  Nov.  1912,      16  p. 
Oliveira.     Os  estrangeiros  no  Brazil.    1906. 

Octavio,  Rodrigo.     Direito  de  estrangeiro  no  Brazil.     Rio  de  Janeiro,  1909. 
La  condition  de  I'etranger  au  Bresil,  by  R.  Octavio  de  Langgaard  de  Menezes. 

(9  Nouv.  rev.  prat,  de  dr.  int.  prive,  1913,  49  el  seq.) 
Die  rechtliche  Stellung  der  Fremden  in  Brasilien,  von   Vladimir  Pappafava. 

(3  Jahrb.  der  int.  Vereinig.  f.  vergl.  Rechtswissenschaft,  1897,  187-198.) 
Declarations  to  be  made  by  aliens  who  do  not  wish  to  be  considered  Brazilian 

citizens.     June  13,  1890.     (82  St.  Pap.,  1889-90,  1030-32.) 
Decree  concerning  estates  of  aliens.     Nov,  8,  1851.     (92  St.  Pap.,  1899-1900, 

424-426.) 
La  cittadinanza  brasiUana  imposta  agli  stranieri  e  il  codice  civil  italiano,  per  A. 

Rossi.     (47  La  Legge,  1907,  2219-2224.) 
Indig^nat  et  naturalination  dans  la  R^publique  du  Bresil,  par  A.  de  BusschSre. 

(1  Rev.  de  I'Institut  de  dr.  comp.,  1908,  230-239.) 
L'dtranger  devant  la  justice  au  Bresil  by  R.  Octavio.     (40  Clunet,  1913,  783- 

795.) 

Admission. 

Regulations  regarding  immigration  and  colonisation  in  Brazil.     Decree  No.  6455 

of  April  19,  1907.     Rio  de  Janeiro,  1907. 
Decreto  n.  1458  de  10  de  abril  de  1907  da  regulamento  para  a  execugao  da  lei 

n.  1045-C,  de  27  de  dezembro  de  1906  que  dispoe  sobre  a  immigragao  e 

colonisagao  no  territorio  do  estado.     S.  Paulo,  1907. 
Gesetze  und  Regierungsbestimmungen  Uber  Einwanderungs-Kolonie  des  Staates 

S.  Paulo,  Brasilien.     Sao  Paulo,  1900. 

Expulsion. 

Brasilianisches  Gesetz  voni   7.   Januar   1907   iiber  Ausweisung  Fremder.     (4 

Ztschr.  f.  Volkerrecht,  1909-10,  62-64.) 
Expulsion  des  6trangers.     Instructions  du  23  mai  1907  pour  I'execution  de  la 

loi  no.  1641  du  7  Janvier  1907.     (37  Clunet,  1910,  1377-80.) 
De  I'expulsion  des  6trangers  en  Bresil.     Note  sous  trib.  sup.  federal  du  Brdeil 

du  29  juillet  1908,  par  Paule  Goule.     (5  R.  D.  I.  prive,  1909,  632-639.) 

Foreign  Corporations. 

Hanicotte,  R.,  and  G.    Societds  fran^aises  et  6trangeree  au  Br68il.    Paris,  1909. 


APPENDIX  921 

Soci^t^    anonyme    ^trang^re.     Br^sil.     Conditionfl    de    fontionnement.     (22 

Clunet,  1895,  81-83.) 
Law  of  September  5,  1895,  regulating  foreign  life  insurance  companies  in  Brazil. 

(1  For.  Rel.,  1895,  59-63.) 
Lee  personnes  morales  ^trangeres  dans  la  legislation  brfeilienne,  by  R.  Octavio. 

1  Ques.  prat,  de  dr.  int.  priv6,  1914,  353-360. 

CHILE 
Aliens  in  General. 

Correa  y  Bravo,  Augustin.     Los  estranjeros  ante  la  ley  chilena.     Santiago  de 
Chile,   1894.     (Same.     33  Rev.  de  derecho,  hist,  y  let.,   1909,  505-515; 
34  iMd.,  1909,  29-41,  277-283,  401-410,  573-583;  35  Hn<l.,  108-123.) 
Le  droit  international  priv6  dans  la  legislation  du  Chili,  par  Jose  Clemente 

Fabres.     (14  Clunet,  1887,  133-143,  291-299.) 
Barros,  Julio  Zenteno.     Recopilaci6n  de  leycs  y  decretos  supremos  sobre  coloniza- 
ci6n.     2.  edici6n.     Santiago  de  Chile,  1896.     2  v. 

Admission. 

Reglamento  de  inmigraci6n  libre.     Santiago  de  Chile,  1907. 

Reglamento  de  inmigraci6n  libre — Dictado  en  24  de  junio  de  1905  (translated). 

Santiago  de  Chile,  1905. 
Glosario  de  colonizaci6n  i  esposicidn  de  las  leyes,  decretos  i  demas  antecedentes 

relativos  al  despacho  de  colonizacidn  hasta  el  1.  de  juIio  de  1902.     Ed. 

oficial.     3.  ed.     Santiago  de  Chile,  1902. 

Foreign  Corporations. 

Bill  regulating  foreign  insurance  companies  in  Chile.     (For.  Rel.,  1896,  43-45.) 

Succession. 

Law  of  July  25,  1834,  regarding  the  succession  to  property  of  foreigners.     (23 
St.  Pap.,  1834-35,  1188-89.) 

COLOMBIA 

Aliens  in  General. 

Olarte  Camacho,  Vicente.     Condici6n  legal  de  los  extranjeros  en  Colombia. 

2.  edici6n.     [Bogota],  1913. 
Caicedo  Arroj'o,   M.      Condici6n  de  los  extranjeros  en  Colombia.      Bogota, 

1896. 
De  la  condition  des  Strangers  en  Colombia,  par  E.  Champeau.     (21   Clunet, 

1894,  929-940.) 
fitude  sur  la  condition  legale  des  etrangers  en  Colombie,  par  Demetrio  Porras. 

(15  Bull,  de  \6g.  comparee,  1885-86,  407-415.) 
Le  droit  international  prive  dans  la  legislation  colombienne,  par  Antonio  Jo8< 

Uribe.     (7  R.  D.  I.  prive,  1911,  316-326.) 
Bureau,  Paul.     Le  conflit  Italo-Colombien  (affaire  Cerruti).     Paris,  1899. 


922  APPENDIX 

Rights  and  Duties. 

Decree  in  re  right  of  foreigners  to  hold  real  property.     Bogota,  June  10,  1862. 

(52  St.  Pap.,  1861-62,  1224-25.) 
Rights  and  privileges  of  foreigners  and  others  within  the   union.     Bogota, 

Sept.  26,  1861.     (58  St.  Pap.,  1867-68,  417.) 
Law.     Status,  rights  and  duties  of  foreigners.     Bogota,  June  21,   1866.     (58 

St.  Pap.,  1867-68,  603-604.) 
Decree  of  August  19,  1885,  re  actions  against  foreigners.     (76  St.  Pap.,  1884-85, 

566-567.) 
Law  of  August  31,  1886,  concerning  claims  of  foreigners  in  rebellion.     (77  St. 

Pap.,  1885-86,  807-809.) 
Claims  by  foreigners.     Decree  of  Oct.  11,  1886.    (77  St.  Pap.,  1885-86,  810- 

813.) 
Right  of  United  States  citizens  in  Colombia  as  to  expropriation  of  property. 

(For.  Rel.,  1902,  301-313.) 

COSTA  RICA 

Aliens  in  GeneraL 

Police  des  etrangers.     (4  R.  G.  D.  L  P.,  1897,  136.) 

Admission. 

Loi  du  20  juillet  1896  interdisant  I'immigration  des  Chinois.  (Gaceta,  diario 
oficial  du  22  juillet  1896.)     (25  Clunet,  1898,  972.) 

Decedents'  Estates. 

Decree  of  June  6,  1900,  re  estates  of  deceased  Costa  Ricans  and  foreigners. 
(92  St.  Pap.,  1899-1900,  737-738.) 

Literary  Property. 

Copyright  in  Costa  Rica.     (For.  Rel.,  1899,  584-588.) 

CUBA 

General  Works. 

Bustamente  y  Sirv^n,  Antonio  S.  de.  Tratado  de  derecho  internacional  privado, 
t.  1.     Habana,  1896. 

Aliens  in  General. 

Rights  of  British  subjects  in  Cuba  are  not  governed  by  treaties,  either  with  the 
United  States  or  Spain,  but  by  aliens  law  of  1870.  (For.  Rel.,  1901,  225- 
231.) 

Carrera  y  Justiz,  Francisco.     El  municipio  y  los  extranjeros.     Habana,  1904. 

Admission. 

Disposicioncs  relativas  k  inmigraci6n.  Immigration  lawa  and  regulatioaa. 
Habana,  1907. 


APPENDIX  923 

ECUADOR 

Aliens  in  General. 

Law  of  August  28,  1886,  in  re  rights  of  foreigners.     (77  St.  Pap.,  1885-86,  72^ 
732.)    Law  of  August  25,  1892.     (84  St.  Pap.,  1891-92,  644-647.) 

Foreign  Corporations. 

Loi  du  21  octobre  1909  relative  aux  society  6trang6re8  faisant  dea  op6rationa 
en  Equateur.     (37  Clunet,  1910,  1386-88.) 

GUATEMALA 
Aliens  in  General. 

Ley  de  extranjeria.     Guatemala,  1895. 

Decree  of  February  21,  1894,  in  re  legal  status,  etc.,  of  foreigners.     (86  St.  Pap., 

1893-94,  1281-98.) 
Same.     Amendment.     (86  St.  Pap.,  1893-94,  1299-1300.)     (For.  Rel.,   1894, 

316-334.) 
Local  jurisdiction  over  foreign  merchant  ships.     (For.  Rel.,  1894,  296-297.) 

Admission. 

Law  of  immigration  of  the  Republic  of  Guatemala.     Published  by  the  Consulate 
general  at  New  York.     New  York,  1879. 

Ezptilsion. 

Decree  of  October  14,  1883,  in  re  expulsion  of  foreigners.     (74  St.  Pap.,  1882-83, 
764-765.) 

Foreign  Corporations. 

Decree  of  April  19,  1893,  concerning  the  status  of  foreign  companies.     (85  St. 
Pap.,  1892-93,  835-836.) 

Marriage. 

Decree  of  October  2,  1873,  in  re  marriages  of  foreigners.    (77  St.  Pap.,  1885-86, 
234-235.) 

HAITI 

Aliens  in  General. 

Alien  law  of  Haiti,  by  J.  B.  Terres.    (Cons.  Rep.,  1894,  v.  46,  pp.  277-279,  53rd 

Cong.) 
Devot,  Justin.     La  nationalite  et  son  influence  quant  i  la  jouissance  et  i  I'exer- 

cice  des  droits.     Paris,  1893. 
Justin,  Joseph.     De  la  nationalite  en  Haiti,  suivie  d'un  apergu  historique  sur 

le  droit  haitien.     Port-au-Prince,  1905. 

Admission. 

Regulations  of  entrance  and  departure  of  foreigners  from  Haiti.    (For.  Rel., 

1894,  347.) 


924  APPENDIX 

Police  des  Strangers.     Sujets  ottomans.     Immigration.     Obligation  du  paase- 
port.     (12  R.  G.  D.  I.  P.,  1905,  441-453.) 

Asylum. 

Robin,  R.    Le  droit  d'asile  diplomatique.    Sa  suppression  en  Haiti.    Paris, 
1909. 

Courts — Jurisdiction  of  Aliens. 

Jurisdiction  over  aliens  waived  by  Haitian  courts.     (For.  Rel.,  1900,  706-713.) 

Foreign  Judgments. 

De  I'effet  et  de  I'ex^cution  des  jugements  etrangers  en  Haiti,  par  Joseph  Justin. 
(33  Clunet,  1906,  638-646.) 

Taxation. 

Foreigners  in  Haiti  required  to  procure  license  to  do  business.  (For  Rel.,  1899, 

403-404.) 
Discriminating  taxation  between  natives  and  foreigners.     (For.   Rel.,   1894, 

347-350.) 
Discriminating  taxes  upon  foreign  merchants,  clerks,  etc.     (For.  Rel.,  1898, 

387-397.) 
Taxes  on  Americans  removed.     (For.  Rel.,  1898,  399-402.) 
Haiti.  Etrangers.  Commerce.  Industrie.  Taxes.  Avis  de  la  commission  com- 

numale  de  Port-au-Prince  du  novembre  1909  sur  le  regime  des  patentee. 

(7  R.  D.  I.  priv6,  1911,  547-548.) 

HONDURAS 

Aliens  in  General. 

Translation  of  the  alien  law  of  the  Republic  of  Honduras.     February  8,  1906. 

London,  1907.     (Gt.  Brit.     Foreign  Office.     Miscellaneous.     No.  1,  1907.) 
Decree  in  re  rights  and  privileges  of  aliens.     March  6,  1866.     (69  St.  Pap.,  1877- 

78,  774-775.) 
Decree  of  April  10,  1895,  in  re  status  of  foreigners.     (87  St.  Pap.,  1894-95, 

703-710.) 
Ley  de  inmigraci6n,  1906.     Tegucigalpa  [1906]. 

MEXICO 

General  Works. 

Zavala,  F.  J.     Compendio  de  derecho  internacional  privado.     3rd  ed.     Mexico, 

1903. 
Perez   Verdia,   Luis.     Tratado   elemental   de   derecho   internacional  privado. 

Guadalajara,  1908. 

Aliens  in  General. 

Rodriguez,   Ricardo.     La  condici6n   juridica  de  los   extranjeros   en   Mexico. 

Mexico,  1903. 
Zavala,  F.  J.     Examen  y  exposici6n  de  la  ley  de  extranjeria.     Mexico,  1903. 


Al'PK.NDlX  925 

Rodriguez,  Ricardo.     C6digo  de  extrajeria.     [Mexico],  1903. 

Azpiroz,  Manuel.     C6digo  de  extranjeria.     Mexico,  1876. 

Note  de  Eniile  Velasco  .  .  .  eur  la  condition  des  Strangers  d'apr^s  la  constitu- 
tion et  les  lois  de  la  republique  mexicaine  (communiqu^e  par  M.  Vladimir 
Pappafava).     (21  Bull,  de  16g.  comparde,  1891-92,  623-^32.) 

Mexican  laws  concerning  alienship  and  naturalization.  (For.  Rel.,  1895,  1011- 
18.) 

Jordan,  John.  Serious  actual  dangers  of  foreigners  and  foreign  commerce  in 
the  Mexican  State.     Philadelphia,  1826. 

See  Index  to  Part  III  of  Derecho  int.  Mexicana.     4  v.     Mexico,  1889. 

Admission. 

C6digo  de  colonizaci6n  y  terrenos  bdldios  de  la  Republica  Mexicana.  Mexico, 
1893. 

Extradition. 

Note  sur  I'extradition  au  Mexique  pendant  les  ann^es  1897  k  1906,  par  P.  Le- 
boucq.     (3  R.  D.  I.  prive,  1907,  145-153;  4  ibid.,  1908,  129-142.) 

Foreign  Corporations. 

Fuller,  E.  Dean.  Handbook  of  the  law  of  Mexican  commercial  corporations, 
including  foreign  corporations  in  Mexico.     Mexico  City,  1911. 

Real  Property. 

The  transient  foreigner  cannot  acquire  property  in  real  estate  of  any  class. 

(Hamilton,  Leonidas.     Mexican  law.     San  Francisco,  1882.) 
"As  to  rights  of  foreigners  to  real  estate  in  Mexico,  see  Consular  Reports  on 

Commercial  Relations,  1883,  No.  31,  688  et  seq.;  Mr.  Frelinghuysen,  Sec.  of 

State,  to  Mr.  Howe,  March  15,  1884,  156  MS.  Dom.  Let.  286."    (Moore's 

Dig.  VI,  p.  702.) 

PARAGUAY 

Leyes  de  inmigraci6n  y  de  colonizaci6n  y  hogar.     Asunci6n,  1905. 

Decree  of  the  Supreme  government  of  Paraguay,  regulating  the  treatment  of 

foreigners  within  the  Republic.     Assumption,   May   20,    1845.     (52  St. 

Pap.,  1861-62,  1025-27.) 

PERU 

Aliens  in  General. 

Zegara,  Felix  C.     La  condici6n  juridica  de  los  extranjeros  en  el  Peru.     Lima, 

1872. 
De  la  situation  legale  des  Strangers  au  Perou,  par  F.  Pradier-Fod6r4.     (5  Clunet, 

1878,  345-368,  577-595;  6  Clunet,  1879,  41-53,  25O-270.) 
Zegarra,  J.  P.     La  condition  juridique  des  Strangers  au  P^roj.     Santiago  de 

Chile,  1892. 


926  APPENDIX 

Relaciones  de  la  nacidn  con  los  extranjeros  (Chap.  5,  pp.  62-69  of  Santisteban, 
J.  S.     Curso  de  derecho  internacional.     Lima,  1864.) 

Marriage. 

Marriages  of  foreigners  in  Peru.     (For.  Rel.,  1904,  687-692.) 
Marriages  between  non-catholics  in  Peru.     (For.  Rel.,  1899,  588.) 

SALVADOR 

Law  of  September  29,   1886,  concerning  foreigners.     (77  St.  Pap.,   1885-86, 

116-123.) 
Constitucion   politica,    leyes   constitutivas   y   ley   de   extranjeria,    decretadas 

por  el  Congreso  nacional   constituyente  de  1886.     4.  ed.     San  Salvador, 

1896. 
Propri^te  litteraire  et  artistique.     Droit  des  Strangers.     (28  Clunet,  1901,  206- 

207.) 
Law  of  May  10,  1910,  concerning  claims  against  the  state.     Libro  rosado. 

URUGUAY 

Leyes  y  decretos  sobre  inmigraci6n  y  colonizacidn,  promulgadas  por  el  poder 
ejecutivo  de  la  Republica  Oriental  del  Uruguay.     Montevideo,  1908. 

VENEZUELA 

Aliens  in  General. 

Planas  Suarez,  S.     Los  extranjeros  en  Venezuela.     Caracas,  1905. 

Pappafava,   V.     Situation  juridique  des  etrangers  au  Venezuela.     Bayonne, 

1914. 
Venezuelan  law  regulating  the  status  and  position  of  foreigners.     Caracas, 

April  16,  1903.     (96  St.  Pap.,  1902-03,  647-650.) 
Ueber  die  rechtliche  Stellung  der  Auslander  in  den  Vereinigten  Staaten  von 

Venezuela  (SUd-Amerika),  von  Vlad.  Pappafava.     (1  Jahrb.  der  int.  Verei- 

nig.  f.  vergl.  Rechtswissenschaft,  1895,  273-276.) 
Les  Strangers  au  Venezuela,  par  Fernand  Daguin.       (1  R.  D.  L  priv6,  1905, 

277-290.) 
Daguin,  Fernand.  Les  etrangers  au  Venezuela.     Paris,  1905. 
Condici6n  legal  del  extranjero  en  Venezuela,  por  Angel  Cesar  Rivas.     (3  Anales 

de  la  Universidad  Central  de  Venezuela,  1902,  131  et  seq.) 
Rivas,  C6sar.     De  la  observancia  de  la  ley  extranjera  y  de  su  garantia.     Car- 
acas, 1906. 
Processo  storico  suUa  condizione  giuridica  degli  stranieri  nel  Venezuela,  per 

R.  Magliano.     (BoUettino  del  Ministera  degli  affari  esteri,  August  1893, 

p.  159.) 
Decree  of  March  22,  1898,  relative  to  procedure  in  cases  against  foreigners. 

Caracas,  March  22,  1898.     (95  St.  Pap.,  1901-02,  431-432.) 
Resolution.     Communication   of   legal   proceedings   in    which   foreigners   are 

impUcated,  March  22,  1898.     (90  St.  Pap.,  1897-98,  340-341.) 
Decree  governing  foreigners.     (For.  Rel.,  1894,  802-803.) 


APPENDIX  927 

Rights  of  aliens  in  Venezuela.  (Involving  issuance  of  consular  or  vice-consular 
exequaturs  to  persons  engaged  in  commerce.)     (For.  Rel.,  1903,  806-808.) 

Le  droit  international  prive  et  penal  du  V6n6zu61a,  par  Angel  C^sar  Rivae. 
(8  R.  D.  I.  prive,  1912,  5-20.) 

Seijas,  R.  Practicos  del  ministerio  Venezolano  de  relaciones  exteriores.  Tomo 
1.     Madrid,  1891. 

Asuntos  internacionales.  Correspondencia  del  Ministerio  de  relaciones  ex- 
teriores de  los  Estados  Unidos  de  Venezuela  con  algunas  de  las  legaciones 
acreditadas  en  la  republica.     1900-03.     Caracas,  1903. 

Law  of  April  16,  1903  and  decree  of  November,  1912  governing  aliens. 

Admission. 

Venezuela.  Laws  regulating  immigration  and  public  lands.  [Washington,  1895.] 
(Bureau  of  American  Repubhcs,  Washington,  D.  C.  Special  bulletin. 
June,  1895.) 

Foreign  Corporations. 

Laws  governing  foreign  companies  in  Venezuela  [transmitted  by  E.  H.  Plu- 

macher].     (In  Monthly  Cons.  Rp.,  July,  1904,  No.  286,  p.  66.)     [From 

Venezuela  herald.]     (58th  Cong.) 
Les  eocietds  etrangeres  au  Venezuela,  par  Angel  C^sar  Rivas.     (32  Clunet,  1905, 

520-529.) 
Rivas,  Cesar.    De  las  sociedades  extranjeras  en  Venezuela.    Caracas,  1905. 

Practice  of  Professions. 

Avocats  etrangers.  Conditions  pour  exercer  la  profession.  Loi  du  9  Janvier 
1905.     (33  Clunet,  1906,  575-576.) 


INDEX 

A 

PAGE 

Abandoned  or  Captured  Property  Act 264 

Abandonment  of  claims 366  et  seq.,  373,  378 

Ability  to  prevent  injury 215 

Ability  to  afford  local  protection 221,  231 

Absence  of  nationality 19,  591 

"  Absolute  equity  "  clause 803 

Abuse  of  rights  of  weak  states 331,  346,  447,  836,  839,  857,  859 

Acceptance  of  civil  office 777,  813 

Acceptance  of  political  office 687,  712,  813 

Access  to  courts 291,  334,  337 

ACT  OF  MARCH  2,  1907: 

§  1 501,  569,  691 

§  2 554,  678,  680,  702 

§  3 592,  602,  604,  680 

§  4 596,  600,  605 

§  5 581,  611 

§  6 586,  609 

Act  of  state 147,  174 

Acte  r^glementaire 127 

ACTS  OF  ADMINISTRATION: 
See  Administrative  Acts. 

ACTS  OF  AUTHORITY: 

France 134 

Germany 143 

ACTS  OF  GESTION: 

France 8,  135  et  seq. 

Germany 137 

Italy 149 

Acts  of  government 132 

Criteria 132 

France 134 

Germany 142 

Italy 149 

Acts  of  police  (France) 134  et  aeq. 

Acts  of  war 256,  257 

029 


930  INDEX 

ADMINISTRATION,  ACTS  OF: 

See  Administrative  Acts.  page 

Administration  of  decedents'  estates,  consular 89,  404 

Administrative  acts 131 

Administrative  control 132,  138 

Anglo-American  system 156 

Austria-Hungary 160 

Belgium  and  other  countries 154 

Comparison  of  systems 155 

Criteria 132 

Different  classes 134 

French  system 134  et  seq. 

German  system 142  et  seq. 

International  responsibility 185 

Italy 148 

Judicial  control 118,  131 

Roumania 154 

Spain 147 

Switzerland 152 

Administrative  authorities 183 

Contracts 184 

Minor  officials 189 

Torts 185 

Administrative  law 117  et  seq. 

Bibliography 119 

Administrative  machinery  of  state 213,  220 

ADMINISTRATIVE  SYSTEMS: 

Anglo-American 156  et  seq. 

Austria 150 

Belgium  and  other  countries 153 

Comparative  discussion 173 

Comparison  of  continental  systems 155 

France 134  et  seq. 

Germany 142  et  seq. 

Hungary 151 

Italy 148 

Roumania 154 

Spain 147 

Switzerland 152 

ADMINISTRATORS: 

See  Executors  and  Administrators. 

Admission  of  aliens 44  et  seq. 

Conditions  fixed  by  state 47 

Not  an  enforceable  right  of  alien 46 

Aeronauts 587 


INDEX  931 

PAGE 

Affidavits 655 

Agencies  of  protection 435 

AGENCY: 

Relation  between  officer  and  state 186 

Agents  of  the  state 180 

Aid  and  comfort 237,  786 

Acts  which  do  not  constitute 790 

Definition 786 

Alabama  award 387,  397,  414 

ALIENAGE: 

Advantages  in  Latin-America 93,  838,  842  et  seq. 

ALIENS: 

Absence  of  political  remedy  justification  for  diplomatic  protection 106 

Admission 44  e<  seq. 

Bibliography Appendix 

Calvo  clause 792 

Civil  rights 40,  42,  69  eUe?. 

Civil  war  injuries 838 

Classes  exempt  from  territorial  jurisdiction 94 

Criminal  proceedings 96  e<  seq.,  333  et  seq. 

Disabilities  (feudal  period) 34 

Discharge  of  municipal  functions 69,  92 

Domiciled  ahens 91  e<  seq.,  691,  842 

(^Duties  of  states  imposed  by  international  law 178,  346 

Enemies Ill,  251 

V— Equal  protection -. 40,  85,  104 

•-Equality  of  treatment  with  citizens vi,  39,  40,  44,  88,  104,  350,  844 

Exclusion 44  f<  seq. 

Exemptions  by  reason  of  alienage 43,  93 

Expulsion 48  e<  seq. 

Extraterritoriality 102 

History 3,  33 

In  municipal  law 36,  71 

In  United  States 107 

In  war 109,  250 

Industrial  and  economic  disabilities 79  e<  seq.,  86,  91 

Industrial  and  literary  property 89 

Latin- American  principles 842  et  seq. 

Matriculation 74,  723,  854 

Legal  personality,  recognition  of 40 

Method  of  presenting  claims  to  U.  S 355 

Military  service 6i  et  aeq.,  93 

See  also  Military  Service. 


sea. 

13b 


932  INDEX 

ALIENS — Continued  page 

Minimum  of  rights  due  aliens 39,  350 

Neutral  aliens  in  war 251 

No  legal  right  to  diplomatic  protection vi,  29,  356 

Ownership  of  real  property 86,  699,  853 

Pan-American  conventions 844 

Participating  in  an  insurrection 237,  245,  768,  852 

Partners  of  American  citizens 613  et  seq. 

Personal  property 88 

Political  disabilities 43,  63,  93 

Political  rights 63,  93 

Private  law 44 

Private  rights SQ  et  seq. 

Privileged  position  in  Latin- America 93,  350,  838,  842  et  seq. 

Public  law .    .    .         43 

Public  rights ^2,  73  et  seq.    (See  main  head.) 

Registration. 

See  Matriculation. 

Remedies  in  municipal  courts 116  e<  seq.,  822 

Anglo-American  system 156  et 

In  Austria-Hungary 

Belgium  and  other  countries 153 

In  Court  of  Claims 165 

In  France 134 

In  Germany 142 

In  Italy 149 

In  Spain 147 

In  Switzerland 152 

In  United  States 156  et  seq. 

Resident  in  belligerent  territory 251,  750 

Restrictions  upon  territorial  legislator 37,  39,  350 

Right  of  residence  and  travel 37,  42,  74 

Right  of  sojourn 37,  74 

Roman  law 4 

Sources  of  law  of  aliens 38 

"Special  protection " 40 

Subjection  to  territorial  law 92,  94,  349,  733,  793,  795 

Succession   87 

Taxation 95 

"Temporary  allegiance" . 11,  94,  349,  691 

Transient  aliens 91,  350,  691 

Treaty  rights 38,  40 

Treaty  rights  (of  aliens  in  U.  S.) 107,  201,  226 

Types  of  municipal  legislative  systems  71 

ALLEGIANCE: 

Paramount 698 


INDEX  933 

ALLEGIANCE— Continued  paqb 

Perpetual 544,  675,  677 

"Temporary" 11,  94,  349,  691 

True,  testa  to  determine 697 

AMNESTY: 

To  private  offenders 218,  239 

To  rebels 238 

Angary 113,  253,  255,  267 

Annexing  states 203 

Annulment  of  contracts  by  government,  arbitrary 292,  336 

Apportionment  of  debts 202 

Appropriation  of  private  property 169,  184,  188,  194 

In  war 262 

ARBITRAL  COMMISSIONS,  COURTS: 
See  Tribunals  of  Arbitration. 

ARBITRARY  ACTS: 

In  contract  claims 285,  292,  295,  336 

ARBITRATION: 

As  a  method  of  protection 442 

Adjustment  of  claims 443,  859,  861 

Bond  claims 322 

Contractual  claims 296 

Expenses 397 

Jurisdiction 444 

Nature  of 444 

ARBITRATORS: 

Powers 444 

Arbuthnot  and  Ambrister  case 782 

ARREST:. 

In  war 259 

On  shipboard  in  foreign  ports 408 

ARREST  AND  DETENTION  FOR: 

Military  service 365 

Arrest,  unjust  or  unlawful 98,  337 

Assignability  of  claims 636  et  seq. 

Assignees 636 

In  bankruptcy 641 

Same  citizenship  as  assignor  necessary 637 

Special  provisions  of  federal  statutes 638^ 


934  INDEX 

ASSIGNMENT:  page 

Does  not  nationalize  claims 637,  660 

Assignment  of  national  bonds 324 

Association  and  assembly,  right  of 76 

Assumption  of  debts  on  partition  of  etatea 202 

Asylum 48,  435,  464 

Attacks 257 

ATTORNEYS: 

Fees 393 

Must  file  power  of  attorney 656,  658 

Authorities  of  the  state 180  et  seq 

Courts 195 

De  facto  governments 205  et  seq. 

Different  classes 180 

Diplomatic  and  military  officers 187 

Executive  and  administrative 183 

Heads  of  the  state 183 

In  contractual  relations 183 

Judicial  authorities 195 

Minor  officials 189 

Municipalities 200 

Naval  officers 187 

Political  subdivisions  of  state 199 

Soldiers 193 

Sovereigns 183 

Tortious  acts •  185 

AWARDS: 

Erroneous 386 

Finahty  of 382 

See  also  Indemnity. 

B 

BACKWARD  COUNTRIES: 

Acts  of  individuals 215 

Extent  of  protection 406 

Mob  violence 221,  222 

Bancroft  treaties 548 

Banishment 7 1 6 

Bankrupt  countries 326 

BANKRUPTCY: 

Assignees  in 64 

Battle 256 

Belligerent  domicil 110,  253,  559  et  seq.,  812 

Laurent  and  Uhde  cases 562^ 


INDEX  935 

BELLIGERENT  DOMICIL— Continued  page 

Of  partner 559,  615 

Withdrawal  from 560,  812 

Belligerent   rights 240 

Exercised  after  treaty  of  peace 249 

When  they  begin 248 

When  they  end 249 

Beneficial  owners  (of  claims)  281,  388,  392,  642 

Creditors 643 

Insurers 646  et  seq. 

Mortgagees 645 

Birth  certificates 488,  497,  509 

Blockade 112,  234,  271,  274 

As  reprisal 454 

Pacific  blockade 454 

Running  of,  effect  on  protection 739 

Blockades,  paper 181,  234 

BOMBARDMENT: 

As  punitive  operation 450 

As  reprisal 454 

In  war 256,  259 

Unauthorized 188 

BONDS,  PUBLIC: 

Act  of  sovereignty 304,  306,  308 

As  distinguished  from  ordinary  contracto 283,  302 

Bad  faith  in  non-payment 308,  312 

Before  arbitral  tribunals 323 

Creation  of  the  debt 304,  308 

Diplomatic  interposition 310  d  seq. 

Diversion  of  security 316 

Drago  doctrine 308,  312,  317,  321 

Instructions  to  delegates  of  U.  S.  at  Conferences.    .         318 

International  remedies 308 

Intervention 310  et  seq. 

Law  governing 303 

Liquidated  debts 316 

Means  of  enforcement 304  et  seq.,  308 

Nature  of 302,  306 

Operation  of  loan  contracts 325  et  seq.,  327 

Opinions  of  publicists  concerning  official  interposition 310 

Policy  of  Great  Britain 314 

Pohcy  of  the  United  States 316 

Porter  proposition 318  et  seq.,  328 

Practice  of  nations  in  matter  of  intervention 313 

Relation  between  Porter  proposition  and  Drago  doctrine 321 


936  INDEX 

BONDS,  PUBLIC— Con<tnM€<i  PAGE 

Remedies  in  municipal  courts 306 

Speculative  loans  not  enforced 315,  317 

Suability  of  state 305 

U.  S.  and  Central-American  loans 325  et  seq. 

Bondholders  in  foreign  railroads 645 

Booty 260 

Bowman  act 659,  715,  828 

Boxer  claims 424 

Brigandage 219 

BURDEN  OF  PROOF: 

Civil  war  injuries 232 

Contraband 273 

Mob  violence 221 

C 

Cable  cutting 265 

Calvo  clause 294,  320,  792 

Decisions  of  international  tribunals 800 

Executive  views 797  et  seq. 

Incorporation  in  concession  contracts 794  et  seq. 

Ineffectiveness  in  preventing  interposition 797,  808  et  seq. 

Validity  of,  denied 805 

Validity  of,  upheld 801 

Calvo  doctrine 792  et  seq.,  837,  842 

Cannon  and  Groce  cases 237,  245,  768,  783 

Capitulations 431  e/  seq.,  468 

Attempted  abrogation  by  Turkey 431 

CAPTURES: 

After  date  of  treaty  of  peace 249,  250 

Captures  in  neutral  waters 276 

CARGO: 

When  protected  by  flag  of  vessel 483,  771 

Carranza  government 211 

CENSURABLE  CONDUCT: 

"Aid  and  comfort" 786 

Breach  of  local  (foreign)  law 733 

Breach  of  international  law 737 

Breach  of  nat  ional  law 744 

Concealment  and  denial  of  citizenship 720 

Different  classes  of  cases 716 

Desertion 728 

Evasion  of  national  duties 728 


INDEX  937 

CENSURABLE  CONDUCT— Con/umed  page 

Extraneous  to  claim  or  injury 718 

Fraudulent  aiid  exorbitant  claims 724 

Participation  in  politics 778 

Piracy  and  slave  trade 737 

Trading  with  the  enemy 748 

Unlawful  enemy  intercourse 754 

Unneutral  conduct 715,  752,  755  el  seq. 

Unneutral  military  service 766  et  seq. 

l^nneutral  supplies  and  other  aid 78^3 

\'i<)lation  of  rights  of  belligerents 739 

Central  government,  responsibility  of 199 

CERTIFICATE  OF  NATURALIZATION: 

As  evidence  of  citizenship 514,  519  el  seq. 

Cancellation  of 520,  528,  533 

Character  as  res  adjudicata 519 

Conclusiveness  on  international  tribunals 522 

Conclusiveness  upon  the  executive 526 

Conclusiveness  on  municipal  courts 520 

Effect  given  to  foreign 521 

Finality  of 520  et  seq. 

Fraudulent 520,  522,  528  el  seq. 

How  far  internationally  binding 517,  519,  533 

How  granted 519 

How  revoked 520,  528 

Impeachment 517  el  seq. 

Nature  of 519 

Practice  of  international  tribunals 522 

CERTIFICATES  OF  REGISTRATION  (CONSULAR): 

See  Registration. 
Certificates  of  registration  (vessels) 479 

Evidential  character 479 

Cession  of  states 202 

CHILDREN: 

Act  of  March  2,  1907,  §  5 611 

Born  on  high  seas 587 

Citizenship  at  birth 606 

Citizenship  by  naturalization  of  parent 611 

Dual  nationality 580  el  seq. 

Effect  of  father's  expatriation 608,  687 

Election  of  citizenship  (if  dual) 584  e<  seq.,  609,  689 

Foreign-born  American 582,  608 

Half-castes .* 612 

Illegitimate 612 


9o8  INDEX 

CHILDREN— Continued  page 

Legitimation 612 

Native,  taken  abroad  at  early  age 584,  698 

CHINESE  REVOLUTION  OF  1911: 

Measure  of  damages 426 

Circular  of  March  5,  1906 653 

Interpretation 656 

Circular  of  July  26,  1910 696 

CITIZENS: 

Born  abroad  of  American  fathers 582,  709 

Constitutional  law 9,  20,  462 

Destitute  citizens  abroad 409 

Dual  citizenship 575,  580,  582 

International  law 9,  20,  462 

International  rights 12 

Meaning 557,  698 

Rights  and  duties 12,  21 

Subjective  rights 17,  30 

See  also  Citizenship. 

Expatriation. 

Native  Citizens. 

Naturalization. 

Naturalized  Citizens. 

CITIZENSHIP: 

Abandonment  of 694 

Assignors  and  assignees 637 

At  origin  of  claim  necessary 660  et  seq. 

At  time  of  presentation  of  claim  necessary 664 

Banishment 710 

By  birth 458,  606 

By  naturalization 458,  611 

By  whom  determined 486 

Cannot  be  forced  upon  alien 43,  535,  683,  712,  852 

Certificate  of  registration  as  evidence  of 495,  515 

Characteristics  of  bond 19,  21 

Children 606  et  seq. 

Classes  of  American  citizens 458 

Collective  naturalization 461 

Concealment  and  denial  of 720 

Con.st it  ut ional  law 457,  462 

Constit  utional  theory 9,  20 

Continuoiis,  necessary  for  claim 666 

Corporations 617  et  seq. 

Development 7 

Derivative  claimants 627 


INDEX  939 

CITIZENSHIP— Con/iwued  paqb 

Documentary  evidence  of 492,  512,  515 

Dual 

See  Dual  Citizenship 

Effect  of  acceptance  of  political  office 687,  712 

Effect  of  marriage  upon 593  el  seq. 

Effect  of  military  service  abroad 687,  71 1 

Effect  of  purchase  of  land 492,  699,  723,  853 

Effect  of  parent's  naturalization 611 

Equitable  owners 642  el  seq. 

Evidence  of 512,  516 

Fulfillment  of  duties  of 673 

Heirs 627 

Identification 512,  516 

Impeachment 517  el  seq. 

Incomplete 466,  501 

In  municipal  law  of  U.  S 457 

Insurers 646  el  seq. 

"Intent  to  return"  to  U.  S 553,  689 

International  theory 9,  20 

Loss  of,  by  residence  abroad  of  naturalized  citizens 552,  701 

Methods  of  proof  of 488 

Missionaries  in  extraterritorial  countries 465,  706 

Modes  of  acquiring 458  et  seq. 

Nature 7 

Nature  of  bond 9,  10 

Not  heritable  indefinitely  in  extraterritorial  countries 465,  609,  709 

Partners 613 

Passport 493  el  seq. 

Political  theory 10 

Primary  title  to  protection 457 

Proof  of 488  el  seq.,  652,  654 

Relation  to  domicil 523,  555  el  seq.,  683,  698,  852 

Renunciation  (by  naturalized  citizens) 552,  680,  701 

Renunciation,  formal 681  el  seq 

Renunciation,  implied 689  el  seq. 

Rules  of  tribunals  of  arbitration  for  proving  citizenship 490 

Stockholders 619  et  seq.,  625 

Theory  of  contract 9,  10 

Title  to  international  redress 15 

Usually  essential  to  protection 462 

Who  may  impeach 517  el  seq. 

Women 592,  593  et  seq. 

See  also  Expatriation. 

Nationality. 

Naturalization. 

Naturalized  Citizens. 


940  INDEX 

PAGE 

Civil  rights  of  aliens 69  c<  seq. 

Meaning  of  term TO 

Public  rights 73 

CIVIL  WAR: 

Service  of  aliens  in 237,  245,  768  et  seq. 

Civil  war  injuries 228  et  seq. 

Alien  participating 237,  244,  852 

Calvo's  doctrine 838 

Continued  residence  by  aliens 236 

Effect  of  recognition 235 

Equality  of  alien  and  native 237,  243,  838 

Insurgents  beyond  control 229 

Latin-American  experience 237,  243,  838 

Legislative  limitations  on  protection 838  et  seq. 

Liability  forced  on  Latin-America 243,  838 

Obligations  of  government 231 

Rules  of  the  Institute  of  International  Law 245,  841 

Theories  of  liability 228,  841 

Treaties  between  Europe  and  Latin-American  states 244,  838 

Voluntary  indemnities 242 

CIVILIZED  JUSTICE: 

Violations  of  principles 333,  344 

See  also  Standards  of  Civilized  Justice. 

CLAIM: 

Abandonment  of 366,  373,  378 

Adjustment  by  arbitration 443,  859,  861 

Adjustment,  present  methods 861 

Adjustment  an  international  proceeding 381 

Affidavits 655 

A  right  of  the  state 178,  352,  353,  362,  666 

Assignability 636 

Circular  of  March  5,  1906 653 

Citizen  cannot  waive  right  of  government  to  interpose.  .358,  372,  797  et  seq. 

805  et  seq. 

Citizenship  at  origin  necessary 629,  637,  660  et  seq. 

Citizenship  at  time  of  presentation 629,  637,  664 

Claimant's  obligations 651 

Conditions  of  prosecution 651  ei  seq. 

Conditions  of  presentation  imposed  by  tribunals  of  arbitration 658 

Conflicting  claims  to  indemnities 392 

Continuously  owned  by  citizen 638,  666 

Depositions 654,  655 

Direct  and  indirect  injury 353,  666 


INDEX  941 

CLAIM — Continued  page 

Effect  of  delay  in  presenting 825 

Effect  of  diplomatic  negotiations  on  international  tribunal 370,  383 

Effect  of  war  and  treaty  of  peace 256,  362,  368,  834 

Espousal  by  government 357 

Evidence  in  support 653  et  seq. 

Exorbitant 724 

Fraudulent 367,  385,  724 

Government  control  over,  unlimited 358 

Govemmcnt  not  liable  for  mismanagement 376 

Government  not  obliged  to  consult  claimant 371 

May  be  pressed,  against  claimant's  wish 371 

May  be  renounced  for  reasons  of  public  policy 373 

Merger  of  private  and  national 356,  833 

Method  of  presenting 355,  653,  658 

Method  of  proving  title  to  indemnity 393 

National  character  of 357,  359,  383 

Not  nationalized  by  subsequent  naturalization  of  owner  or  assignment .  .  540, 

637  et  seq.,  660 

Opportunity  for  presenting 372 

"Owned "  by  citizen 664,  665 

Political  considerations  preventing  pressure  of 372,  834 

Power  of  government  to  settle,  compromise,  release  or  abandon 366  et  seq. 

Power  of  government  to  modify  or  reduce 369 

Private  and  public  wrong 352,  355,  805  et  seq. 

Private  ownership  of 381  et  seq. 

•  Right  of  representation  of  deceased  person 633 

Rules  for  submission 653  et  seq. 

Settlement  an  international  proceeding 359 

Settlement  by  government  estops  claimant 368 

Speculative 289,  300,  315,  728 

Submission  to  Department 652 

Submission  to  international  court 338,  373,  443,  861  et  seq. 

Surviving  private  settlement 362 

Survivorship  of 632 

Theory 352,  355,  666 

Who  may  act  as  legal  representative 634 

CLAIMANT: 

Beneficial  owners 642  et  seq. 

Censurable  conduct 713  et  seq. 

Derivative 381,  391,  392,  627 

Determination  of  amount  due 391  et  seq. 

Finality  of  Department's  determination  as  to  person  entitled 396 

Heirs 627  el  seq. 

Memorials  of 653 

Method  of  proving  title  to  indemnity 388,  393 


942  INDEX 

CLAIMANT — Continued  page 

Nature  of  hia  title  to  claim  or  indemnity  received 352,  359,  384 

Obligations,  as  conditions  of  prosecution  of  claim 651 

Representatives  of  the  government 216,  223,  361 

Seamen  on  public  vessels 361 

Secondary 381,  391,  392,  627 

Successors  in  interest 627  el  seq. 

Who  is  a  "claimant" 391 

See  also  Claim. 

Claimant  government  judge  of  international  wrong 331,  861 

Claims  against  states 177  et  seq. 

Nature  of 178 

Coasting  trade 79 

Collision  between  public  and  private  vessels 166,  188 

Commerce,  liberty  of 77 

Incidental  rights 78 

Commerce  in  munitions  of  war 279 

COMMERCIAL  DOMICIL: 

See  Belligerent  Domicil. 

COMPENSATION: 
See  Indemnity. 

CONCESSION-CONTRACTS: 

Calvo  clause 294,  320,  794,  797  et  seq.,  856 

CONCESSIONAIRES: 

Unfair  treatment  of 405 

Concessions 292,  336,  401,  405 

Confiscatory  breach  of  contract 292 

Connivance  at  wrong  by  government 224 

Constitutional  position  of  U.  S.  on  injury  to  aliens 202,  225 

In  matters  of  distributing  awards 386 

In  the  protection  of  citizens  abroad 290,  452 

CONSUL: 

Addressing  local  authorities 437 

Administration  of  decedents'  estates 89,  404 

Protective  functions 436 

Special  protection 216,  223 

CONSULAR  JURISDICTION: 

In  extraterritorial  countries 103,  431,  435,  467,  471 

Consuls  as  authorities 187 

Contraband 112,  271  et  seq.,  740  et  seq. 

Effect  on  protection 739 

Contracts,  effect  of  war  on Ill 


IND£X  943 

CONTRACT,  IMPLIED:  page 

Liability  of  U.  S 169 

CONTRACTS  OF  THE  STATE: 

Limitations  on  authority  of  public  officers 183,  299 

Contracts  with  government 127 

Increase  of  contractor's  burden  by  legislation 127,  171,  322 

Officers  as  authorities 190,  299 

Violation  by  acts  of  police  (France) 135 

CONTRACTUAL  CLAIMS: 

Arbitrary  annulment 292,  336 

Arbitration 296 

Confiscatory  breach  of  contract 292 

Classes,  distinctions ^ 281 

Contracts  between  individuals 283 

Contracts  between  citizen  and  foreign  government 284 

Contracts  for  unneutral  service 299,  776,  784 

Defects  of  existing  system  of  enforcing  claims 328 

Equitable  character 295 

Good  offices  authorized 288 

Illegal  contracts 301 

Impartial  courts  condition  of  non-interposition 291,  292,  335 

Jurisdiction  of  arbitral  tribunals 297 

Legislative  Umitations  on  protection 856 

Liquidated  debt  enforced 296,  316 

Meaning  of  " contractual  debts" 321 

Measure   of  damages 419,  422 

Military  service 301,  776 

Nature 282 

Palmerston's  circular 290 

Policy  of  the  United  States 287,  657 

Policy  of  other  governments 287,  290 

Porter  proposition  at  The  Hague SIS  et  seq. 

Practice  of  arbitral  tribunals 299 

Practice  of  governments 286- 

Protection  not  extended  in  advance 289 

Public  bonds 302 

Qualifications  of  rule  of  non-interposition 291 

Reasons  for  rule  of  non-interposition 285 

Rule  of  non-interposition 284 

Speculative  contracts 289,  300,  728 

Suggestions  for  international  court 328 

Voluntary  services 300 

Weakening  or  divei*sion  of  security 295,  315 

When  exhaustion  of  local  remedies  unnecessary 285,  819 

When  involving  elements  of  tort 292,  295 


944  INDEX 

PAGE5 

Contractual  limitation  on  freedom  of  legislation 182 

Contractual  renunciation  of  protection 792 

CONTRIBUTIONS: 

See  Requisitions  and  Contributions. 

(CONTROL  OF  GOVERNMENT  OVER  CLAIM: 

See  Government  Control. 

Copyright 90 

Corporate  functions  of  state 117,  122 

France 134 

CORPORATION: 

American 620 

Anglo-American  law 619 

Bibliography 617 

Citizenship 617 

Civil  law,  nationality  in 617 

Conditions  of  protection 620,  622 

Disloyalty  of  officers 78.5 

Expatriation 680 

Foreign 41,  622 

Owners  of  vessels  under  foreign  flags 62.3 

Ownership  of  stocks  and  bonds 621,  622,  62.5 

Protection  of  foreign 622 

Rule  of  international  tribunals 623  et  seq. 

Stockholders'  citizenship,  effect  of 619  et  seq.,  625 

Substantially  owned  by  American  citizens 621,  622 

iSee  also  Foreign  Corporation. 

COURT  OF  CLAIMS: 

In  Latin-America 849 

Jurisdiction  (U.  S.) 164 

Liability  of  government  (U.  S.) 16^  et  seq. 

COURTS: 

Absence  of  impartial 335,  822,  824 

Acce^ss  to 291,  334,  337 

Arbitrary  executive  control  of 335 

As  authorities 195,  343 

As  instruments  of  oppression 336,  824 

Cannot  control  executive  discretion: 

In  distributing  indemnities 385 

In  extending  protection 363 

Corruption 198 


INDEX  945 

COVRTSr— Continued  pagh 

Determine  questions  of  private  ownership  between  contesting  distributees  of 

indemnities 391  et  seq. 

Diplomatic  claims  against  municipal  decisions 342,  846,  851 

Impartiality  a  condition  of  non-interposition 291,  335,  822,  824 

Infallibility  not  guaranteed 332 

Misapplication  of  municipal  or  international  law 332 

Misinterpretation  of  law 195,  332 

Remedies  in  municipal 116  e/  seq.,  822 

Right  of  alien  to  sue  in  local 82,  146 

Unwillingness  to  function 336 

COURTS,  FOREIGN: 

American  citizens  litigating  in 405 

Creditors 643 

Criminal  jurisdiction 99 

Over  crimes  committed  abroad 101 

Criminal  procedure 97 

Due  process 99,  333,  336 

Irregularities 99,  336  et  seq.,  736 

Criminal  proceedings 96  c/  seq. 

Acquittal 99,  736 

Charges  unproved 99,  736 

Denial  of  justice 100,  333,  337 

Disproportionate  punishment 99 

Grounds  of  claim 99,  336  et  seq. 

Lack  of  jurisdiction 100 

Lack  of  probable  cause 99 

Protective  measures 98,  467,  735  et  seq. 

Violation  of  municipal  law  or  treaty 99,  337  et  seq. 

Criteria  of  de  facto  governments 210 

CUBANS,  PORTO  RICANS,  FILIPINOS: 

Passports 502,  511 

Custom-houses,  seizure  of 449,  453 

Customs  collectors  as  authorities 186 

CUSTOMS  DUTIES: 

Collection  by  de  facto  authorities 208 

By  insurgents 239 

D 

DAMAGES: 

Alabama  award 414 

Chinese  revolution  of  1911 426 

Contractual  cases 419,  422 


946  INDEX 

DAMAGES— Continued  page 

Death  claims 424 

Direct  and  indirect 413  et  seq. 

Expenses  in  prosecuting  claim 47 

Fishing  vessels  ordered  to  suspend 421 

Interest .428 

Maritime  torts 419 

Personal  injuries 423 

Profits 414,  417,  419 

Proximate 414,  416,  418 

Punitive  or  exemplary 419 

Remote 416 

Seizure  of  cargo 420 

Speculative 416 

Tort  claims 422 

When  indirect  damages  allowed 416 

Days  of  grace  (for  departure  of  enemy  vessels) 62,  114,  266 

DEATH  CLAIMS: 

Measure  of  damages 424 

Debasement  of  currency 183 

DEBTS,  PUBLIC: 

Apportionment  of 202 

Local 204 

Transmission  of 203,  205 

See  also  Bonds,  Public. 

DECEDENTS'  ESTATES:  ^ 

Citizenship  of  original  claimant  governs  jurisdiction 634 

Claims  of 627  et  seq.,  633 

Consular  administration 89,  404 

Law  governing  distribution  of 630 

Rules  governing  right  of  representation 633 

Survivorship  of  claims. 632 

Who  may  act  as  legal  representative 634 

DECLARANTS: 

Anomalous  position 567 

Issuance  of  passports  to 501,  569,  652 

Protection  in  third  countries 569,  572 

Protection  of 466,  568,  691 

Declaration  of  intention 466,  501,  568,  662 

By  seamen 476 

Effect  on  U.  S.  citizenship 566,  662 

International  effects 565 

Purpose 566 

When  unnecessary  to  admission  to  citizenship 565 


INDEX  947 

DECLARATION  OF  INTENTION  PLUS  DOMICIL:  page 

See  DoMiciL  Plus  Declaration  of  Intention, 

De  facto  authorities 183,  205,  239 

De  facto  governments 203, 205  el  seq.,  239 

Constitutional  defects  internationally  unimportant 205,  207 

Criteria  of 210 

Effect  of  recognition 210 

General  and  local 206,  211 

Powers  of  each 206  el  seq. 

Tests  of 210 

DELAY: 

In  investigating  alleged  injury 337 

In  presenting  claims 825 

DELAY  (OF  JUSTICE): 

Undue  or  needless 99,  331 

Delegated  protection 471 

Accompanying  conditions 471 

Occasions  of  exercise 472 

Keimbursement 472 

DEMAND: 

For  payment 300 

For  punishment  of  offenders 219 

DENIAL  OF  JUSTICE: 

Absence  of  impartial  courts r^SS^  822 

Admitted  ground  of  claim SM 

Arbitrary  annulment  of  concession  contracts 292,  336 

Arbitrary  executive  control  of  courts ^35 

Broad  and  narrow  sense -830 

Change  of  personnel  of  court 292 

Claimant  government  determines 331,  341 

Conditions  incident  and  precedent 331,  817 

Contractual  claims 281,  284 

Courts  as  instrvunents  of  oppression 336,  824 

Detention  without  trial 337 

Discriminations  against  alien 291,  822 

Distinguished  from  unjust  judgment 196,  340 

Execution  without  trial 337 

Failure  to  afford  redress 337,  824 

Failure  to  execute  judgment 199,  339 

Failure  to  institute  criminal  proceedings 337 

Failure  to  punish  guilty 339 

Granting  pardon,  preventing  prosecution  of  guilty 339 

Illegal  change  of  personnel 338 


i/48  INDEX 

DENIAL  OF  JVSTICE— Continued  page 

Inability  of  courts  to  adjudicate 336 

Inexcusable  delay  in  investigating  offense 337 

In  general 100,  104,  192,  196,  824 

Irregularities  in  judicial  proceedings 333,  336 

Legislative  definitions 334,  84() 

Legislative  limitations  on  interposition 824  et  seq. 

Meaning  of  the  term 330 

Partiality  of  local  courts 291,  293 

Permitting  guilty  to  escape 337 

Preventing  judicial  recourse 339,  824 

Refusal  to  hoar  testimony 338 

Seizure  of  property  without  due  process 336 

Suppression  of  local  remedy 823 

Unduly  long  detention  or  imprisonment 337 

Unlawful  arrest  or  detention 99,  337 

Unlawful  change  of  venue 338 

Violation  of  municipal  law 337 

Violation  of  rules  for  conduct  of  judicial  proceedings 338 

Violation  of  treaty 337 

When  irregularities  are  not  denial  of  justice 339 

DEPARTMENT  OF  STATE: 

Circular  of  March  5,  1906 653 

Functions  in  the  distribution  of  awards 387  et  seq. 

Interpretation  of  circular  of  March  5,  1906 6^ 

Practice  under  Act  of  Feb.  27,  1896 388  e<  seq. 

Quasi-judicial  functions  in  considering  claim 652 

Rulings  on  effect  of  concealment  of  citizenship 720 

Deposit  of  national  funds  received  as  indemnities 389 

Depositions ; 654 

Depreciation  of  bonds 295,  311,  316 

Desertion 728 

Destitute  and  insane  citizens  abroad 410 

Destruction,  wanton  and  unnecessary 193,  233,  260,  261 

Destruction  of  prizes 276 

Detention,  unjust 98,  337 

In  war 259 

Of  vessels 187,  265,  337 

Unnecessarily  long 99,  337 

DIPLOMACY: 

As  means  of  protection 439 

DIPLOMATIC  OFFICERS: 

As  authorities 187 

Authority 184 


INDEX  949 

DIPLOMATIC  PROTECTION:  page 

A  limitation  on  territorial  jurisdiction 344,  346 

A  matter  for  state's  discretion 29,  31,  351 

A  reserved  right  of  states 28,  346 

An  extraordinary  legal  remedy vi,  352,  667 

An  international  proceeding 354,  357 

As  a  duty 29,  356 

As  a  right  of  states vi,  29,   346,  354 

Basis  of  state's  action 106,  163,  353 

Citizenship  usually  essential 462 

Delegated  protected 47 1 

Departure  of  practice  from  .principle  in  weaker  countries vi,  28,  346 

Discretionary  with  the  government 363 

Effect  of  consular  registration 667 

Effect  of  passport 493  et  seq. 

Exercise  of. 354,  403 

In  cases  of  dual  nationality 580 

In  extraterritorial  countries 430,  467 

In  operation 354,  403 

Interposition  as  a  means 441 

Naturalized  citizen  in  native  country 540 

Nature 349 

Not  a  legal  right  of  individual '. vi,  39,  356 

Object  of 457 

Of  foreigners,  occasionally 463 

Of  missionaries 422,  465 

Theory 349  et  seq. 

Vattel's  doctrine 351 

See  also  Limitations  on  Protection. 

Loss  OF  Protection. 

Renunciation  of  Protection. 
Disavowal  of  wrongful  act  of  officer 191,  192 

DISCRETION  OF  THE  GOVERNMENT: 

Deference  to  wish  of  Congress 363 

Free  from  judicial  control 363,  377,  385 

In  espousing  claim 351,  354,  363 

In  the  distribution  of  awards 385,  390 

In  the  extent  of  protection 399 

In  the  presentation  of  claims 365,  372 

Not  liable  for  mismanagement 376 

Uncontrollable  by  courts 363,  377,  385 

Discriminating  duties  and  charges  prohibited 78 

DISCRIMINATIONS: 

Criminal  proceedings 97,  100,  333 

In  breach  of  treaty  obligations 333 


950  INDEX 

DISCRIMINATIONS— Con<m?/ed  page 

Industrial  and  economic  disabilitiea 79,  96 

Licenses 91 

On  ground  of  nationality 100,  291,  334 

Ownership  of  real  property 86 

Taxation 95 

Disloyalty 715,  786,  790 

DISTRIBUTEES: 

French  spoliation  claims 631 

DISTRIBUTION  OF  AWARDS: 

Act  of  Feb.  27,  1896 388 

Control  of  Executive  and  Congress  over 386 

Custody  of  indemnities 389 

Determination  of  who  is  "claimant" 391 

Different  stages  of  proceedings 381  et  seq. 

Expenses  of  arbitration 397 

Governmental  discretion , 377,  385 

Liens 392 

Method  of  Department  in  making  payment 395 

Method  of  distribution 385  et  seq. 

Method  of  proving  title  to  indemnities 393 

Nature  of  claimant's  title 384 

Practice  prior  and  subsequent  to  Act  of  1896 388 

Remedies  of  rival  claimants  of  award 396 

Secondary  or  derivative  beneficiaries 392  et  seq. 

DISTRIBUTION  OF  ESTATES. 

Law  governing 630 

Diversion  of  pledged  revenue 295,  315,  316 

Division  of  states 202 

DIVORCEES: 
See  Widows. 

Dollar  diplomacy 327 

Domicil 12,  24,  91  et  seq.,  555 

Abroad,  does  not  denationalize 698 

Abroad,  effects  of 732 

As  conferring  national  character 555 

Belligerent 110,  253,  559  et  seq. 

Bibliography 556 

Civil 559 

Criterion  in  case  of  dual  nationality 589,  605 

Effect  given  to,  by  arbitral  tribunals 561,  605 

Extraterritorial  countries 708 


INDEX  951 

DOMICIL — Continued  page 

In  enemy  territory 251,  255,  556  et  seq.,  563 

In  prize  law 556,  559 

In  territory  in  insurrection 235 

Laurent  and  Uiide  cases 562  et  seq. 

Neutral  in  belligerent  territory 251,  255,  556,  563 

Permanent,  effects  su{?gesto(l 565 

Right  to  protection  arising  from 556 

Widows 605 

Domicil  plus  declaration  of  intention 491,  558,  570 

Koszta's  case 570 

U.  S.-Mexican  commission  of  1868 574,  700 

Domiciled  aliens 91  et  seq.,  691,  842 

See  also  Belligerent  Domicil. 

Drago  Doctrine 308,  312.  317 

Relation  to  Porter  proposition 321 

DUAL  NATIONALITY: 

At  birth 580 

Birth  on  high  seas 587 

Children  bom  in  U.  S 580 

Decisions  of  arbitral  commissions 587 

Election  of  citizenship 576,  584 

Foreign-born  American  citizens 582,  608 

Issuance  of  passports 502 

Jus  sanguinis 578 

Jus  soli 577 

Manner  in  which  it  arises 19,  575 

Measures  to  be  adopted  to  adjust  conflicts 590 

Methods  of  avoiding  conflicts 578 

Native  citizens 580,  582 

Protection  abroad 580 

U.  S.  position  in  case  of  naturalized  citizens 534,  576 

Women 592,  606 

DUE  DILIGENCE  TO  PREVENT  INJURY: 

Acts  of  individuals 213,  217,  220 

Civil  war 232 

Mob  violence 221,  223 

To  prevent  violations  of  neutrality 278 

Due  process  of  law - 99,  100,  197,  332,  334,  336 

E 

East  Florida  claims 373 

ELECTION  OF  CITIZENSHIP: 

Children 576,  583.  584,  608  et  seq.,  689 


952  INDEX 

ELECTION  OF  CITIZENSHIP— Con/inttcd  page 

Method 584 

Time  of 586,  610 

Widows 598,  600,  689 

Embargo 265 

As  reprisal 454 

Embargo  acts 753 

Emigration  offenses 550 

Enemy  character 110,  253 

Of  vessels 254 

ENFORCEMENT  OF  CLAIMS. 

Defects  of  system 328,  861 

Enforcement  of  the  laws 214 

"Equal"  protection 40,  85,  104 

Equal  protection  of  native  and  naturalized  citizen 407,  460,  541 

Equahty  between  alien  and  national vi,  39,  40,  44,  88,  104,  844 

Equality  of  states 353 

Erroneous  convictions 129,  196,  737 

Errors  of  criminal  justice 129,  196,  737 

Germany 146 

Errors  of  justice 101,  195  e<  seq.,  332,  737 

Escape  of  guilty  offenders 218,  337,  339 

EXCESS  OF  POWER: 

France 134 

Germany 143 

Italy 148 

Belgium 153 

Excess  collections  of  taxes  or  duties 184 

Exclusion  of  aliens 44  c/  seq. 

Discriminations 47 

Grounds  announced  in  advance 46 

Haiti's  exclusion  of  Syrians 47 

Right  of  the  state 45  e<  seq. 

EXECUTION: 

against  property  of  foreign  governments 307 

[/  Execution  of  alien  without  trial 337 

Execution  of  foreign  judgments 85 

Executive  acts 131 

Executive  authorities 183 

Contract  ual  obligations 184 

Tortious  acts 185 

Executive  regulations  or  decrees 127,  181 

Executors  and  administrators 629,  633 


INDEX  953 

EXECUTORS  AND  ADMINISTRATORS— Con/tnueri  page 

Citizenship  of  original  claimant  governs  juriediction 634 

Consuls 89,  404,  633 

Must  prove  right  to  appear 393,  634 

Personal  representative 629,  633,  634 

Rules  governing  right  of  representation 393,  633 

EXHAUSTION  OF  LOCAL  REMEDIES: 
See  Local  Remedies. 

EXPATRIATION: 

Acceptance  of  pensions,  titles,  etc 687 

Acceptance  of  political  oflBce 687,  712 

Act  of  March  2,  1907 554,  678,  680 

Act  of  1868 676,  678  et  seq. 

Acts  which  do  not  effect 711 

An  individual  right 674 

Bibliography 683 

Circular  of  April  19,  1907 682 

Comparative  legislation 683  et  seq. 

Conviction  for  crime 687 

Corporation 680 

Countries  which  admit,  on  condition  only 546 

Countries  which  deny  right  of 544,  676 

Countries  which  have  naturalization  treaties  with  U.  S 548 

Denied 544,  675,  677 

Doctrine  of  voluntarj^  expatriation 542,  674 

Effect  of  prolonged  residence  abroad 686,  690  et  seq. 

Effect  on  wife  and  children  of  husband  and  father's  expatriation 687 

Evidence  of 689  et  seq.,  694 

Failure  to  abandon  foreign  military  service 687,  712 

Failure  to  heed  jus  avocandi 686 

History  in  U.  S 674 

Implied 686,  689  et  seq. 

Intent  not  to  return 686,  689,  691,  694,  701 

In  time  of  war 678,  680,  751 

Married  women 601 ,  685 

Methods  of 680,  685 

Method  of  overcoming  presumption  of,  in  China  and  Turkey 465 

Methods  of  overcoming  presumption  of 694,  703  et  seq. 

Military  service  abroad 687,  711,  730 

Modes  of 680,  685 

Native  citizens 692,  696  et  seq. 

Naturalization  abroad 681,  685 

Oath  of  allegiance 682 

Of  apphcant  for  registration 704 

Of  naturalized  citizens 680 


954  INDEX 

EXPATRIATION— ConrtnMcd  pagb 

Practice  in  U.  S 678,  679 

Presumption  of 689,  694 

Presumption  of,  how  overcome 555,  703  et  seq. 

Renunciation  of  naturalization 552,  554,   680 

Residence  in  extraterritorial  countries 465,  706  et  seq. 

Rules  for  overcoming  presumption  of  expatriation 704  et  seq. 

Types  of  legislation 683 

Unauthorized 544,  546 

Voluntary 542,  674 

See  also  Citizenship. 

Naturalized  Citizens. 

EXPEDITIONS,  HOSTILE  OR  UNLAWFUL: 

See  Hostile  Expeditions. 

EXPENSES: 

As  an  item  of  damage 417 

Of  arbitration 397 

Expulsion  of  aliens 48  e<  seq. 

A  qualified  right  only 49 

A  right  of  the  state 48 

Collective  expulsion 49,  61 

Grounds  of  expulsion 51  et  seq. 

Limitations  on  right 50 

Resolutions  of  the  Institute  of  International  Law 53 

Grounds  of  international  claims 57  e/  seq. 

Arbitrary  expulsion 57 

In  violation  of  municipal  law 57 

In  violation  of  treaty 58 

Unduly  oppressive  exercise  of  right 59,  733 

Special  discrimination 61 

International  phases 55  ei  seq. 

Arbitrary  or  unnecessarily  injurious  exercise  of  right 56,  733 

Communication  of  reasons  to  national  government  on  demand 56 

National  government  passes  on  justification  and  sufficiency  of  evidence    56 

Treaties 56 

In  time  of  war 61 

Method  of  exercising  right 54 

Recent  developments 5.") 

Resolutions  of  the  Institute 5.1 

Source  of  the  right 4<S 

Extent  of  protection 399 

Backward  countries 406,  467 

Criminal  proceedings  abroad 407 

Degree  of  assistance  in  special  caaee 403 

Extraterritorial  {)rotection 430,  467 


INDEX  955 

EXTENT  OF  PROTECTION— Con^i/iueJ  page 

Factors  determining 399 

Financial  relief 409 

Fostering  American  interests  abroad 400 

Government's  action  not  anticipated 399 

Measure  of  damages 413 

Miscellaneous  cases 407 

Preventive  measures 401 

Extradition 62 

Extraterritorial  crime 102 

EXTRATERRITORIAL  COUNTRIES: 

Distinctively   American   community 465,  609  et  seq.,  707 

Extent  of  protection 430,  467 

Heritability  of  citizenship 465,  609,  709 

Jurisdiction  of  the  U.  S.  in 431,  467 

Origin  and  development  of  system 432 

Presumption  of  expatriation 70() 

Privileges  of  extraterritoriality 433 

Protection  of  foreigners 467 

Protection  and  jurisdiction 430,  467 

Protege  system 468 

Registration  in 669 

Residence  in,  prolonged 706 

Seamen  on  national  vessels 471 

Sources  of  extraterritorial  rights 43 1 

Extraterritorial  jurisdiction 8,  26,  430,  467 

Extraterritoriality 102 

F 

Failure  of  courts  to  disapprove  violations  of  law 197,  337 

Failure  to  afford  redress 189,  192,  199,  213,  223,  337 

Failure  to  execute  judgment 199,  339 

FAILURE  TO  EXHAUST  LOCAL  REMEDIES: 

See  Local  Remedies. 
Failure  to  prevent  wrong 188,  192,  194,  199,  215,  217 

Mob  violence 224 

Failure  to  punish  guilty  offenders 189,  191,  192,  194,  199,  218,  337,  339 

Mob  violence 225 

False  imprisonment 99,  337 

Feudal  system 6 

Filibustering  expeditions 718,  747,  760  et  seq. 

Financial  intervention 310  et  seq. 

Financial  relief 409 

Fishing  in  coastal  waters 79 


956  INDEX 

FISHING  VESSELS,  INTERFERENCE  WITH:  page 

Damages 421 

Fiskus 137,  143,  152 

FLAG  (MARITIME): 

Abusive  display  of 484 

Covers  cargo 483,  771 

Evidence  of  nationality 115,  478 

Evidentiary  value  as  to  nationality  of  vessels 115,  478 

Forfeiture  of  protection  of  neutral  flag 254,  484,  748 

Fraudulent  use 480 

Proper  use  of 483 

Protection  afforded  by 476,  664 

Transfer  of  flag  in  time  of  war 255,  483,  744 

FORCE  (AS  MEANS  OF  PROTECTION): 

Display  of 446 

Drago  Doctrine 312,  317 

Intervention 450 

Landing  troops 450 

Military  occupation 449 

Monroe  Doctrine 451 

Porter  proposition 318,  328 

Punitive  operations 450 

Reprisals 453 

Seizure  of  custom-houses 449 

Suppression  of  local  riots , 449 

To  collect  claims 449 

Use  of 448 

War 455 

FORCE  MAJEURE: 

In  war 256 

FORCED  LOANS: 

By  belligerents 269 

By  insurgents 239 

Treaty  exemption  of  aliens 64,  113 

Forcible  deprivation  of  property 293 

FOREIGN  CORPORATIONS: 

Bibliography Appendix 

Different  systems 41 

Latin-America 853 

Law  governing 41,  42 

Recognition 41 


INDEX  957 

FOREIGN  JUDGMENTS:  page 

Execution  of 85 

When  impeachable 341 

Foreign  jurisdiction 346 

Foreign  legislation,  protest  against 290,  316,  401 

Foreign  states  in  municipal  courts 175 

FOREIGNERS: 

Delegated  protection 471 

In  "  extraterritorial "  countries 467 

Insurers  of  American  property 649 

Matriculation 672 

Occasional  protection  of 463 

Protege  system 468 

Seamen,  foreign,  on  American  vessels 477 

See  also  Aliens. 

FORFEITURE  OF  PROTECTION: 

See  Loss  of  Protection. 
Fostering  American  interests  abroad 400 

FRAUDULENT  CLALMS: 

Against  foreign  governments 725 

Against  U.  S 724 

EflFect  on  protection 724 

Power  of  government  to  abandon 367,  375,  386 

Fraudulent  registration  (of  vessels) 480 

Freedom  of  worship 75 

French  spoliation  claims 377  et  8eq.,  631,  635,  639,  650 

Fugitives  from  justice 719 

Function  of  the  state 30 

G 

GOOD  OFFICER: 

Contractual  claims 288  et  seq. 

Distinguished  from  official  interposition 440 

Generally 332,  440 

In  cases  of  moral  responsibility  of  foreign  governments 405 

Meaning  of  term 288,  440,  442 

Nature 440 

When  employed 440 

Gossin's  case 705 

GOVERNMENT: 

Not  a  collecting  agency 287 

Not  liable  for  mismanagement  of  claim 376 


958  INDEX 

GOVERNMENT  CONTROL:  page 

Circumstances  under  which  goverament  may  be  liable  to  claimant 378 

Discretion  as  to  reparation 370 

Freedom  of  disposition  over  claims 358,  360 

No  obligation  to  consult  claimant 371 

Not  liable  for  mismanagement 376 

Over  awards  and  indemnities 382 

Power  to  determine  state  responsible 368 

Power  to  modify  or  reduce  claim 369 

Power  to  settle,  compromise,  release  or  abandon 366  et  seq. 

Power  to  renounce  indemnity 373 

Private  settlement  requires  government  approval,  when 370 

Return  of  excessive  indemnities 375 

GOVERNMENT,  RESPONSIBILITY  OF: 
See  State. 

Government  forces,  injuries  by 233,  244 

Governmental  functions  of  state 117,  122 

Guano  acts * 407 

Guarantee  of  aliens'  safety  in  backward  countries 215,  406 

H 

HAGUE  REGULATIONS: 

On  war 114,  246  et  seq.,  263,  265,  266,  267,  268,  270,  275,  277 

Harsh  treatment  unduly  (during  arrest) 99 

Heimailos 19,  591 

HEIRS: 

As  claimants 606,  627 

Citizenship 627 

Decisions  of  arbitral  tribunals 628 

Hostile  expeditions 480,  718,  747,  758  et  seq. 

Cases  before  international  tribunals 762 

EflFect  of  participation  in,  upon  protection 760 

Executive  and  judicial  rulings 765 

Virginius 480,  765 

Zerman  expedition 718,  762 

Huerta  government 211 

Humanity,  intervention  for 14 

I 

IMMIGRATION  LAWS: 

Married  women 596 

Immunity  of  private  rights  in  war 247,  255 

Impartial  courts 291,  822 


INDEX  959 

IMPLIED  CONTRACT:  paob 

(U.  S.) 169 

Imprisonment 99,  337 

Act  of  July  27,  1868 407 

Unnecessarily  harsh 99,  340,  408 

Inadequate  punishment 218,  339 

INCOME  TAX,  PAYMENT: 

Effect  in  overcoming  presumption  of  expatriation 694,  697,  706 

"Incommunicado" 99,  337 

INDEMNITY  OR  AWARD: 

A  national  fund 359,  383  et  seq. 

For  war  losses 246,  247,  279 

Nature  of  claimant's  title  to  fund 384 

No  individual  lien  upon 360,  383 

Not  held  as  trustee  or  agent  for  private  claimant 359,  383 

Power  of  government  to  renounce 373 

Power  of  government  to  return  excess 375 

Private  ownership  matter  of  municipal  law 381  et  seq. 

Right  of  individual  to  receive 360 

INDEPENDENCE  OF  STATES: 

How  limited 345 

INDIVIDUAL: 

International  rights 12 

Nationality 15 

"  Natural "  or  human  rights 13 

No  lien  upon  fund  received  by  his  government  as  indemnity 360 

Position  in  international  law 16  et  seq. 

Property  in  w  ar 113,  246 

"Rights  of  man" 12,  14,  15 

Source  of  rights 11  et  seq. 

Subject  of  legal  rights ,. 26,  30 

Individual,  private 213  et  seq. 

Obligations  of  government 213 

Industrial  property 89 

Industn-',  right  to  carry  on 79 

Disabilities  for  economic  reasons 79 

INJURY: 

Indirect  to  state .  , 353,  666 

Meaning  of 301,  323 

Injustice,  notorious 196,  335,  340,  341 

INSTITUTE  OF  INTERNATIONAL  LAW: 

Civil  war  injuries 245,  841 


1)00  INDEX 

INSTITUTE  OF  INTERNATIONAL  LAW— Continued  page 

Mob  violence  rules 227 

Nationality  of  aeronaut 587 

War  claims 248,  259,  265,  270 

Instruction,  liberty  of 77 

Insufficiency  of  protective  measures 224,  230 

Insurers 646 

American  insurers  of  foreign  property 647 

Foreign  insurers  of  American  property 649 

Insurance  companies  in  French  spoliation  claims 639,  650 

Provisions  of  federal  statutes 650 

Insurgents 228  et  seq. 

As  criminal  offenders 238 

In  control  of  particular  areas 239 

In  Latin-America 242,  838,  842 

Recognition  of 235 

Successful 241 

Unsuccessful 231 

Insurrection 228 

INTERCOURSE,  RIGHT  OF: 

Basis  of  protection 346,  353 

Interest 428 

Rate  of 429 

INTERFERENCE  WITH  BUSINESS: 

In  war 259,  260 

Intermediary  governments 206 

International  court  for  adjudication  of  pecuniary  claims.  .328,   373,   443,   859, 

861  et  seq. 

INTERNATIONAL  LAW: 

Breach  of 737 

Relation  to  municipal  law 17,  178,  857 

International  responsibility  of  the  state 177  et  seq. 

INTERNATIONAL  TRIBUNAL: 

Superior  to  local  courts 343,  805 

INTERPOSITION: 

Constitutional  questions 290 

Contractual  renunciation 792  et  seq. 

Distinguished  from  intervention 441 

In  bond  claims 310  et  seq. 

In  contractual  and  in  tort  claims 282 

Informal  in  contract  claims 288 

Not  formal  in  contract  claims 284 


INDEX  961 

INTEkPOSITION— C(w<m«e(i  PAOB 

Procedure 442 

Qualifications  of  rule  of  non-interposition  in  contract  ciaima 291 

See  also  Diplomatic  Pbotection. 

i>N'iERVENTION: 

Distinguished  from  interposition 441 

For  payment  of  public  bonds 310  et  aeq. 

For  protective  purposes 450 

On  ground  of  humanity 14 

INVESTIGATION  AND  REPORT: 

By  official  representatives 405,  liST 

Irregularities  in  procedure 99,  197,  198,  333,  336  el  seq. 

When  not  denial  of  justice 339 


Jewish  passport  question  with  Russia 47 

Jews,  persecution  of 466 

Judges,  liability  of 130,   195  et  seq. 

Anglo-American  law 173 

Austria 150 

Belgium 154 

Germany 143 

Hungary 151 

Inferior 198 

Misfeasance 195   et  seq. 

Personal  acts 198 

Judgment  in  violation  of  treaty 197,  337 

Judicial  acts 129,  195  el  seq. 

Errors  of  courts 129,  195  el  seq.,  332 

Excess  of  jurisdiction 196,  333 

State  indemnity  for  errors 129 

Judicial  assistance  (suit  in  forma  pauperis) 82 

JUDICIAL  CONTROL: 

Different  systems 118 

Power  of  courts  to  declare  legislation  unconstitutional 129 

JUDICIAL  CONTROL  OVER  ACTS  OF  ADMINISTRATION: 

Anglo-American  system 156  et  seq. 

Austria 150 

Belgium  and  other  countries 153 

Continental  systems 155 

France 134 

Germany 142 


962  INDEX 

JUDICIAL  CONTROL,  ETC.— Continued  page 

Hungary 151 

Italy 148 

Spain 147 

Switzerland 152 

Judicial  errors 101,  195,  332 

Judicial  proceedings 100 

Absence  of  impartial  court 335 

Abuse  of  process 330,  337 

Denial  of  justice 336  et  seq. 

Violation  of  internationally  sanctioned  rules 333,  338 

Judicial  recourse  of  injured  individual 189,  192,  199,  219,  223,  334,  337,  339 

Judicial  remedies 82 

Non-resident  alien's  right  to  sue  for  injuries  causing  death 84 

Suits  between  aliens  in  French  law 84 

See  also  Local  Remedies, 

Jurisdiction 8,  25 

In  extraterritorial  countries 430,  467 

Of  arbitral  commissions 444 

Over  foreign  states 175,  306 

Excess  of 196,  333 

JURISDICTION,  TERRITORIAL: 

Limited  by  diplomatic  protection 102,  334,  346,  354 

Jm  avocandi 686,  730,  746 

Jus  gentium 33 

Jus  soli 577 

Jus  sanguinis 578 

K 

Koszta's  case 570 

Erroneous  interpretations 572 


Labor,  protection  of  national 80 

Laches 825,  827 

Decisions  of  arbitral  tribunals 829 

LAND,  PURCHASE  OF: 

Effect  on  citizenship  (Mexico) 492,  699,  723 

Landing  of  troops 450 

LATIN-AMERICAN  PRINCIPLES,  IN  RE: 

Ahens 838,  842  et  seq. 

Civil  war  injuries 838 


INDEX  963 

LATIN- AMERICAN  PRINCIPLES,  IN  RE— Continutd  page 

Claims  against  the  government 849 

Claims  based  on  tortious  injuries 842 

Exhaustion  of  local  remedies 820,  836 

Foreign  claims 792  el  seq.,  836 

Matriculation  of  foreigners 854 

Relation  between  international  and  municipal  law 857 

Legal  bureaus 436 

LEGISLATIVE  LIMITATIONS  ON  PROTECTION: 

See  Municipal  Limitations. 
Legitimation 612 

LEGISLATION,  ACTS  OF: 

Contractual  responsibility 127 

International  responsibility 181 

Limitations  on  protection 836  et  seq. 

Municipal  responsibility 125 

Unconstitutional 129 

Liberty  of  circulation  and  emigration 74 

Liberty  of  conscience 75 

Licenses  to  trade 110,  753 

Liens  on  awards  or  indemnities 392 

LIMITATION: 

Principle  of 825,  828 

LIMITATIONS  ON  PROTECTION: 

Arising  out  of  political  considerations 834 

Arising  out  of  subject-matter 833 

Breach  of  local  (foreign)  law 733 

Breach  of  international  law 737 

Breach  of  national  law 744  et  seq. 

By  act  of  citizen.    Expatriation 674  et  seq. 

Censurable  conduct  of  claimant 713  et  seq. 

Conditions  prescribed  by  claimant's  government 651  e<  seq. 

Failure  to  exhaust  local  remedies 817 

Laches  and  prescription 825  et  seq. 

Legislative: 

Civil  war  injuries 245,  837 

Contractual  claims 856 

Tort  injuries 842 

Municipal  legislation  of  defendant  state 836 

Renunciation  of  protection 792 

Liquidated  claims 296,  301,  316 

Literary  property 89 


^04  INO£X 

LOANS:  FAaa 

See  BofiDS,  Public. 
Local  debts 204 

LOCAL  PROTECTION: 

Obligation  to  afford 106,  213,  220,  349 

Request  of,  by  foreign  governments 402 

Local  remedies 100 

Delay  in  resort  to 825 

Exhaustion  of,  necessary. 

See  Failure  to  Exhaxist. 

Failure  to  exhaust 191,  285,  332,  339,  817 

Laches 825 

On  bond  claims 305 

Position  of  Latin-America 820 

Prescription 825 

Weakening  of,  a  ground  of  claim 292 

When  unnecessary  to  exhaust 285,  292,  332,  335,  819,  821 

See  also  Calvo  Clause. 

Local  revenues,  guarantee  upon 204 

London  Naval  Conference 270  et  seq. 

LOSS  OF  PROTECTION: 

Acceptance  of  political  office 687,  712,  777 

Acts  against  public  policy 717 

Aid  and  comfort 786 

Banishment 710 

Blackmailing 719 

Breach  of  international  law 737 

Breach  of  local  (foreign)  law 733 

Breach  of  national  law 744 

Breach  of  neutrality 485,  715,  755 

By  expatriation 674  et  seq. 

By  prolonged  residence  abroad 690  et  seq. 

Censurable  conduct  of  claimant 713  et  seq. 

Concealment  and  denial  of  citizenship 720 

Desertion 728 

Disloyalty 715 

Evasion  of  national  duties 728 

Ex  (lolo  malo  uon  oritur  actio 714  e<  seq. 

Exportation  of  arms 761 

Failur(!  to  exhaust  local  remedies 817 

Failure  to  hecnl  jus  avocandi 686,  730,  746 

Fraudulent  and  exorbitant  claims 724  el  seq. 

Fugitive  from  justice 719 

Intercourse  with  enemies 754 

Inches  and  prescription 825  et  seq. 


iNOKX  965 

LOSS  OF  PROTECTION— Conhnuerf  paob 

Military  service  abroad 683,  711,  756,  766,  814 

Participation  in  politics 778,  781 

Participation  in  unlawful  expeditions 76() 

Permanent  residence  abroad 689,  690  el  $eq.,  732 

Piracy  and  slave  trade 737 

Privateering 756 

Renunciation,  express 792 

Renunciation,  implied 810 

Slave  trading 717 

Teaching  polygamy 71Q 

Trading  with  the  enemy 748 

Turpitude  of  claim 717 

Unfriendly  acts 780 

Unlawful  expedition 718,  762 

Unneutral  conduct 715,  755  et  seq. 

Unneutral  military  service 766  el  seq. 

Unneutral  service 776,  783,  786 

Unneutral  supplies  and  other  aid 783 

Vessel  employed  in  foreign  coastwise  trade 695 

Violation  of  rights  of  belligerents 739 

M 

"Maine"  claim 361,  833 

Mandamus 364,  385,  388,  390,  727 

Maritime  torts 419 

Maritime  war 114,  270  el  seq. 

MARRIED  WOMEN: 

See  Women  (Married). 

Martial  law 100 

Matriculation  (of  aliens) 74,  723,  854 

Effect  of  failure  to  matriculate 855 

Meade  claim 379 

MEANS  OF  PROTECTION: 

Agencies  of  protection 435 

Amicable  methods 439 

Arbitration 442 

Asylum 435 

Consular  service 435 

Pacific  blockade 454 

Diplomacy 439 

Diplomatic  interposition 441 

Display  of  force 446 

Good  officea 440 


966  INDEX 

MEANS  OF  PROTECTION— Continued  paob 

Italian  government's  legal  bureaus 436 

Landing  of  troops 450 

Mediation 442 

Non-amicable  methods 445 

Presence  of  war- vessels 446 

Punitive  operations 450 

Reprisals 453 

Retorsion 445 

Treaties 438 

Use  of  armed  force 448 

War 455 

Withdrawal  of  diplomatic  representative 445 

MEASURE  OF  DAMAGES: 
See  Damages. 

MEASURE  OF  PROTECTION: 

See  Extent  of  Protection. 

Mediation 442 

Memorials  of  claimants 653 

Merger  of  private  and  national  claim 356,  368,  666 

Varying  effects  of 360 

METHODS  OF  PROTECTION: 
See  Means  of  Protection. 

Military  authorities 187,  194 

Military  necessity 246,  255,  256,  262,  264 

Military  occupation 207,  239,  250,  263,  267 

As  reprisal 454 

To  collect  claims 449 

Military  operations 256 

Military  service 21 

As  evidence  of  citizenship 491 

Claims  for 772,  776 

Claims  not  pressed 301,  776 

Desertion 728 

Naturalized  citizens  in  native  country 365,  676 

MILITARY  SERVICE  ABROAD: 

Breach  of  neutrality .  .  . ' 759 

Claims  for 301,  772,  776 

Effect  on  citizenship 687,  711,  730,  767,  772,  814 

Effect  on  protection 683,  711,  730,  747,  766  et  seq. 

Participation  in  unlawful  expeditions 760 

Privateering 756 

Prohibition  by  municipal  law 69,  747,  767 


INDEX  967 

MILITARY  SERVICE  ABROAD— Continued  paqb 
Unneutral  service 766 

Military  service  cases 543  et  seq. 

Emigration  offenses 550 

MILITARY  SERVICE,  COMPULSORY: 

Alien's  right  to  leave  country 68 

By  aliens 64 

By  domiciled  aliens 64,  68 

Commutation  of  service 67 

Exemptions  by  municipal  law 67 

May  be  required  to  enroll  for  urgent  local  protection 66,  778 

Requisitions 68 

Treaty  exemption 64,  113 

Mines  (in  war) 259 

Minor  officials 185,  189 

Resort  to  local  remedies  necessary 191 

State  liable  for  failure  to  punish  wrongdoing 191 

Minors  (citizens) 459,  583 

Minor's  clause 565 

Missionaries 222,  465 

Presumption  of  expatriation  overcome 465,  707 

MIXED  COMMISSIONS: 

See  Tribunals  of  Arbitration. 

Mixed  courts 104 

Mob  violence 214,  216,  220 

Belgium 154 

Burden  of  proof 221 

Claims  usually  pressed  immediately 365 

France 141,  227 

Judicial  recourse 223 

Municipalities  liable 141,  154,  226 

Obligations  of  government 220 

Statutory  compensation 141,  226 

Rules  of  the  Institute 227 

United  States 158,  225,  226 

MONOPOLIES,  ESTABLISHMENT  OF  STATE: 

International  responsibility 182 

Municipal  responsibility 126 

Monroe  doctrine 308,  325,  451 

Does  not  prevent  forcible  measures  in  collection  of  claims 326 

Mortgagees 645 

Municipal  corporations 117 

Anglo-American  system 157 

As  contractors 200 


968  INDEX 

MUNICIPAL  CORPORATIONS— Can<i«i/ed  pagb 

Belgium 154 

France 140 

Liability  for  mob  violence 141,  154,  226 

MUNICIPAL  COURTS,  DECISIONS  OF: 

Not  a  defense  against  claim  founded  on  violation  of  international  obligations 

342,  846,  851 
Remedies  in 116  et  seq.,  822 

MUNICIPAL  LAW: 

Aliens 38 

Not  a  defense  against  violation  of  international  obligations.  .39,  105,  181, 

214,  226,  828,  845,  847,  851 

Relation  to  international  law 17,  178,  857 

Municipal  law,  violations  of 337 

(foreign) 733,  780 

(national) 745,  758  et  seq. 

Neutrality  acts 758  et  seq. 

Waiver  of  violation 746 

MUNICIPAL  LEGISLATION: 

Protest  against 290,  316,  401,  847 

MUNICIPAL  LIMITATIONS  ON  PROTECTION: 

Cannot  bar  international  rights 845 

Civil  war  injuries 245,  837 

Claims  based  on  tortious  injuries 842 

Contractual  claims 856 

Matriculation  (as  a  foreigner) 854 

Originating  conditions 836 

Subtle  legislative  measures  to  avoid  interposition 844 

Municipal  responsibility  of  the  state 116  et  seq. 

Anglo-American  system 156 

Austria 150 

Belgium  and  other  countries 153 

By  statute  in  U.  S.  and  Great  Britain 162 

Comparison  of  continental  systems 155 

For  tort  (U.  S.) 166 

France 138 

Germany 142 

Hungary 151 

Incidence  of  liability  between  state  and  officer 120,  132,  138 

Italy 148 

No  legal  responsibility  for  mismanagement  of  claim 376 

On  contract 170 

Spain 147 


INDEX  969 

MUNICIPAL  RESPONSIBIUTY  OF  THE  STATE--Continue<l  page 

Switzerland 162 

Theories 133 

Mutual  concessions  by  states 344 

N 

NATION: 

Different  meanings 12 

NATIONALITY : 

Absence  of 19,  590 

As  test  of  status 555 

Bibliography 683 

Evidence  of  (vessels) 478 

Heivmtlos 19,  590 

No  nationahty 19,  590 

Of  vessels 115,  478 

Test  of  enemy  character 253 

See  also  Citizenship. 

Native  citizens 606,  611 

Foreign-born 582,  608 

Passports 510,  5 12 

Payment  of  income  tax 694,  697,  706 

Permanent  residence  abroad 584,  689,  690  el  seq.,  696,  698 

Tests  as  to  retention  of  American  citizenship  when  permanently  resident 

abroad 697 

Native  teachers  and  converts 466,  468,  470 

Natives,  punishment  of 449 

Naturalization 9,  458 

Abandonment 52,  680,  701 

Abuse  of 522,  528,  538,  562,  663,  720,  721,  732,  811 

As  a  judgment 519  et  seq. 

Bancroft  treaties 548 

By  acceptance  of  pubUc  office 535 

By  military  service 711,  772 

Cancellation 520,  528,  533 

Collective 461 

"Continuous  residence"  (in  U.  S.) 537 

Conditions  of  recognition 535,  677 

Criteria  of  fraud 529,  532 

Does  not  nationalize  foreign  claim 540,  660 

Effect  in  native  country 541,  677 

Fraudulent 520,  522,  528  el  seq.,  538 

Germany  and  Austria-Hungary 550 

How  obtained 519 

How  proved 488,  512 


970  INDEX 

NATURALIZATION— Con/inued  page 

International  effects 533,  677 

Internationally  important  features  of  American  naturalization 536 

Must  be  voluntary 43,  535,  683,  712,  852 

Nature  and  effect 533 

Nature  of  proceedings 519 

Non-retroactive 539 

Of  American  citizen  abroad 681 

Of  parent,  effect  on  children 611 

Of  seamen 475 

Presumptions  of  fraud 529 

Relations  with  France,  Switzerland  and  other  countries 546 

Relations  with  Turkey  and  Russia 544 

Renunciation 550,  552,  702 

Residence  requirements 537 

Revocation 520,  528,  533 

Secondary  evidence  to  prove 489,  497 

Treaties  with  various  countries 548 

Without  effect  on  absent  family 598 

See  also  Certificate  of  Naturalization;  Naturalized  Citizens. 

NATURALIZED  CITIZENS: 

Abroad 460,  541,  553 

Absent  family 598 

Act  of  March  2,  1907 554,  460,  702,  732 

Fraudulent 522,  529  et  seq.,  538 

In  contiguous  countries 704 

In  extraterritorial  countries 706,  709 

"Intent  to  return"  to  U.  S 553 

Loss  of  citizenship 461,  530  et  seq.,  552 

Married  women 596 

Passports 510 

Permanent  residence  abroad 530,  533,  552,  703 

Protection  in  native  country 541,  675,  732,  736 

Relations  of  U.  S.  with  various  native  countries 543  et  seq. 

Residence  abroad 531,  550,  552,  554,  680,  686,  701,  732 

Renewal  of  residence  in  native  countries 550,  552,  701,  736 

When  protection  forfeited 530 

Naval  authorities 187 

NEGLECT  (OF  CLAIMANT): 

In  enforcing  claims 827 

NEGLIGENCE  OF  GOVERNMENT: 

In  adjustment  of  claims 376 

In  investigating  case 192,  21S 

In  preventing  injury  or  punishing  guilty 214,  219 


INDEX  971 

NEGLIGENCE  OF  GOVERNMENT— Conhnued  page 

Negligence  of  the  claimant 714 

Neutral  rights  and  obligations 112,  251,  270,  277,  563 

NEUTRALITY: 

Forfeiture  of 485,  759  et  seq. 

NEUTRALITY,  BREACH  OF: 
iS'ee  Unneutral  Conduct. 

Neutrality  Acts  of  U.  S 759 

Non-intercourse  acts 454,  753,  755 

Notice  to  government  to  prevent  injury 219 

O 

Obligations  of  the  state,  local  protective 106,  213,  220 

Oath  of  allegiance 586,  682 

Office  holding 687,  712,  777,  813 

Officers,  liability  of 124 

Anglo-American  system 156,  173 

Austria 150 

Belgium  and  other  countries 153 

Comparative  law 171 

Continental  systems 154 

France 138 

Germany 144 

Hungary 151 

Italy 149 

Judicial 130 

Legislative 129 

Methods  of  protecting  officer 171 

Personal  acts 190 

Spain 147 

Switzerland 152 

Tortious  acts 185,  189,  190 

OFFICERS,  PUBLIC: 

Authorities  (contractual  matters) 170,  183,  299 

Distinction  between  official  and  personal  acts 190 

Legal  relation  between  state  and  officer 186 

Limitations  on  authority 183 

Minor 185,  189 

Of  political  subdivisions  of  state 201 

Powers  strictly  construed 183,  299 

Tortious  acts 185 

When  state  liable 186,  189  et  seq. 

Oppressive  treatment  (during  arrest) 99 

Organs  of  the  state 180 


972  INDEX 

OWNERS:  page 

Beneficial 381,  391,  627,  642  et  seq. 

Equitable 642  et  seq. 

OWNERSHIP  OF  INDEMNITIES:  , 

How  established 388,  392  el  seq. 

Pacific  blockade 454 

P 

PALMERSTON'S  CIRCULAR: 

On  pecuniary  claims 290 

On  protection  of  naturalized  subjects 543 

On  public  loans 314 

Pardon  of  offenders 218,  239 

Pardon,  petition  for 409 

Partition  of  states 202 

PARTNERS: 

American,  associated  with  aliens 613 

Decisions  of  international  tribunals 614 

Disloyalty  of  one : 715,  785 

Effect  of  belligerent  domicil  of  one 559,  615 

Surviving 616,  635 

PARTNERSHIPS: 

Claims 613  et  seq. 

Effect  of  war Ill,  254 

Legal  entity  in  civil  law 615 

Types 615 

PASSPORT: 

Amendment  of 514 

Applications 509,  652 

Authority  to  issue 508 

Blank  forms 511 

By  whom  issued 496,  508 

Cases  of  dual  allegiance 502 

Child  of  naturahzed  citizen 510 

Chinese 410 

Circular  instruction  Dec.  21,  1914 512 

Conditions  of  issuance 509,  652,  695 

Conditions  of  validity  not  disclosed 518 

Control  of 598 

Cubans,  Porto  Ricans,  Filipinos 502 

Declarant's 501 ,  569,  652 

Discretion  in  issuance 364,  494,  508 


■ '  INDEX  973 

PASSPORT— Con/iniied  page 

Duration 498,  51 1 

Effe<'t  of  permanent  residence  abroad 695 

Emergency 497,  512,  513 

Evidential  value  as  to  citizenship 489,  493,  496,  517 

Expiration  and  renewal 498,  51 1 

Fee .509 

Foreign-born  native  citizen 510 

Fraudulent 518 

Impeachment  of 517 

Jewish  citizens  in  Russia 506 

Local  legalization 507 

Maritime 478 

Names  of  countries  to  be  visited 513 

Native  citizens 510,  512 

Nature  and  purpose  of  system 493 

Naturalized  citizens 510,  512 

Other  documents  of  similar  effect 499 

Precautions  during  European  War 402 

Protection  papers 500 

Regulations  governing  issuance 496  et  seq. 

Relation  to  protection 493  et  seq. 

Requirements  of  foreign  governments 504 

Special 495 

To  whom  issued 500 

Vise 504  et   seq. 

When  refused 495,  719 

Who  included  in 503,  511 

Who  may  impeach 517 

Woman's  application 510 

Patent  rights 89 

In  U.  S 168 

Pelletier  and  Lazare  claims 374,  386,  717,  738 

Person  protected 457  et  seq. 

PERSONAL  INJURIES:  ' 

Measures  of  damages 423 

Personal  laws 44 

Personal  sovereignty 8,  23 

Personal  representative 629,  633,  634 

Who  may  act 634 

Personality  of  law 3,  24 

Petition,  right  of 7b 

Petition  of  right 162 

Pillage 188,  193,  233,  2eO 

Piracy 737,  756,  7C6 

Piatt  Amendment 326,  401,   V  i 


974  INDEX 

PAQE 

Plundering,  by  soldiers 193 

Police  negligence 224,  225 

Police  officials 188,  193 

POLICE  POWER: 

Closure  of  port 181 

France 134 

Germany 144 

Italy 149 

POLITICAL  CONSIDERATIONS: 

As  a  limitation  on  protection 372,  834 

POLITICAL  OFFICE,  ACCEPTANCE  OF: 

Effect  on  citizenship 687,  712,  813 

Political  rights  and  duties  of  aliens 63  e<  seq. 

POLITICAL  SUBDIVISIONS  OF  STATE: 

See  Subdivisions  op  State,  Political. 

Political  theory 10,  30 

Politics,  participation  in 778,  781,  815 

Poor  relief 81,  410 

Porter  proposition  at  The  Hague 318  et  seq.,  328 

Defects 328 

Relation  to  Drago  Doctrine 321 

Ports,  closure  of 181,  234 

Prescription 825  et  seq. 

Effect  of  delay  in  presenting  claim 825  et  seq. 

Decisions  of  arbitral  tribunals 829 

Laches 827 

Limitation 828 

PRESENTATION  OF  CLAIMS: 

Within  definite  time 366 

Preventive  measures  of  protection 401 

PRIVATE  AND  PUBLIC  INJURY: 

Effects  of  merger  of  different  classes  of  claims 360 

Merger  of 356 

Relation  between 355  et  seq.,  362 

PRIVATE  INDIVIDUALS: 

See  Individuals,  Private. 
Private  property 12 

At  sea 110,  114,  253,  270 


INDEX  975 

PRIVATE  PROPERTY— Conftnri«d       ^  page 

Appropriation  of: 

Civil  war 234 

War 246,  252,  262 

Taken  for  public  use 169,  184,  188,  194 

Privateering 458,  756 

Decisions  of  arbitral  tribunals 757 

PRIZE: 

Destruction  of  prizes 276 

In  neutral  waters 276 

Law  of 270  et  seq. 

Made  after  treaty  of  peace 250 

PRIZE  COURTS: 

American  citizens  before  foreign 405 

International  prize  court 276,  343,  861 

Unjust  decisions  not  binding  on  foreign  government 342 

Professions,  practice  of  certain 80 

Profits,  prospective 414,  416,  419 

PROPERTY: 

Destroyed  to  prevent  falling  into  enemy's  hands 264 

Of  aliens  in  war 246 

Right  of  removal 88 

Prostitution,  practice  of 719 

PROTECTION: 

As  between  states 18,  26 

By  virtue  of  citizenship 16 

In  operation 25,  27,  178 

Result  to  individual 18 

Theory 30,  353,  666 

See  also  Diplomatic  Protection; 
Loss  OF  Protection. 

Protege  system 468 

P*rotests  against  proposed  law  of  foreign  country 290,  316 

Public  authorities  protection  act 173 

PUBLIC  DEBTS: 

Not  affected  by  war 112 

Of  Central-American  states 325 

See  also  Bonds,  Public; 
Debts,  Pubuc. 

PUBLIC  OFFICERS: 

See  Officers,  Public. 
Public  power,  state  as  a 122,  125 


976  INDEX 

PAGE 

Public  rights  of  aliens 73  et  seq. 

Coastal  fishing .  .    79 

Coasting  trade 79 

Court  proceedings 82 

Execution  of  foreign  judgments 85 

Freedom  of  speech  and  press 76 

Freedom  of  worship 75 

Individual  liberty   74 

Judicial  remedies 82  et  seq. 

Liberty  of  circulation 74 

Liberty  of  commerce 77 

Liberty  of  conscience 75 

Liberty  of  instruction 77 

Liberty  of  trade 78 

Poor  relief 81 

Practice  of  professions 80 

Right  of  association  and  assembly 76 

Right  of  petition 77 

Right  to  carry  on  industry 79 

Right  to  labor 80 

Right  to  sue  in  forma  pauperis 82 

Punishment,  disproportionate 99 

PUNISHMENT  OF  GUILTY  OFFENDERS: 

Condition  of  state  irresponsibility 191,  194,  213 

Punishment  of  natives 449 

Punitive  expeditions 450,  454 


Quartering 268 

R 

Ransoms 220,  413 

Ratification  of  wrongful  act 191,  217 

REAL  PROPERTY: 

Effect  of  purchase  of,  upon  citizenship 492,  699,  723,  853 

Ownership  by  aliens 86,  853 

Prohibition  to  own  gives  no  right  of  arbitrary  spoliation 87,  853 

Succession 87 

Receivers 642 

RECIPROCITY: 

Rights  of  aUcns  in  municipal  law 71 


INDEX  977 

RECOGNITION:  paqh 

Effect  of 236 

Of  belligerency  of  insurgents 235 

Of  de  facto  government 210 

Refusal  to  investigate  injury 192 

REGISTRATIOxX  OF  ALIENS: 
See  Matriculation. 

REGISTRATION  (CONSULAR): 

American  corporation 622 

As  evidence  of  citizenship 491,  495,  515,  667,  723 

Conditions 695,  704 

Effect  of  failure 668,  669,  689,  72.3 

Election  of  citizenship 600,  609,  668,  689 

In  extraterritorial  countries 669 

Of  children 609,  689 

Of  widows 600,  668,  689 

Porto  Ricans,  Filipinos 672 

Proof  of  citizenship 669 

Purpose 516,  667 

Regulations  of  1907 670 

Relation  to  protection 622,  667,  72:5 

See  also  Matriculation  (of  Foreigners). 

REGISTRATION,  CERTIFICATE  OF: 

As  evidence  of  citizenship 495,  515,  671 

Contents 670,  672 

Effects  of 515 

Practice  of  U.  S 515 

Proof  of  citizenship 516 

Purposes 516 

Regulations 670,  695 

RELATION: 

Between  international  and  municipal  law 17,  178,  857 

Between  states 344 

Release  of  claims 366  et  seq.,  373,  378 

RELIEF  OF  CITIZENS  ABROAD: 

Financial 409  et  seq. 

Religious  persecution 466 

ReUnquishment  of  private  claims  for  public  benefit 378 

RENUNCIATION  OF  CITIZENSHIP: 

By  naturahzed  citizen 530,  680,  702 

Evidence  of 694  et  seq. 


978  INDEX 

RENUNCIATION  OF  CITIZENSHIP— Confinued  _     __        page 

Failure  to  register  in  consulate 689 

Formal 681  et  seq. 

Implied 686,  689  et  seq. 

See  also  Expatriation. 

Renunciation  of  claims 366  et  seq.,  373,  378 

RENUNCIATION  OF  PROTECTION: 

Calvo  clause 294,  320,  792  et  seq. 

Express  renunciation 792 

Implied  renunciation 810  et  seq. 

Repatriation 25,  688 

Women  (after  dissolution  of  marriage) 598,  600,  601,  688 

Representation,  right  of 633  el  seq. 

Representatives  of  the  government,  injury  upon 216,  223,  361 

REPRISALS: 

For  non-payment  of  claims 286,  453 

Repudiation  of  public  debts 305,  308 

Requisitions  and  contributions 68,  113,  114,  263,  267 

Res  adjudicata,  plea  of , 342 

RESIDENCE  ABROAD: 

In  enemy  territory 110,  253,  559 

Not  a  forfeiture  of  citizenship 12,  558,  690 

RESIDENCE  ABROAD,  PERMANENT: 

Decisions  of  arbitral  tribunals 698 

In  extraterritorial  countries 465,  706,  708  et  seq. 

Native  citizens 689,  690  et  seq.,  696,  732 

Naturalized  citizens  530,  533,  552,  701,  703 

Tests  as  to  retention  of  citizenship 697 

RESIDENCE  ABROAD,  PROLONGED: 

Act  of  March  2,  1907 701 

By  owner  of  American  vessel 694 

Circular  instruction  July  26,  1910 696 

Decisions  of  arbitral  tribunals 698 

Effect  on  citizenship 686,  690  et  seq. 

Effect  on  right  of  protection 690  et  seq.,  732 

Effect  on  right  of  registration 695 

In  extraterritorial  countries 706  et  seq. 

Intent  not  to  return 694,  696 

National  state  determines  effect 692 

Native  citizens 692,  696 

Naturalized  citizens 701 

Rules  of  1907,  practice  under 695 


INDEX  979 

RESIDENCE  (IN  U.  S.):  page 

"Continuous  residence" 537 

Naturalized  citizens 517,  519,  530,  532 

RESPONSIBILITY  OF  STATE: 

International IC,  25,  177  el  seq. 

Legislative  limitations  upon 838  el  seq. 

Municipal 116  et  seq. 

Pan-American  conventions 844 

ReMrictions  imposed  by  international  law  upon  municipal  law 37,  39 

Results  of  protection 439 

Retaliation 445,  454 

Retorsion 445 

Revolution 228  et  seq. 

Successful 241 

Unsuccessful 231 

REVOLUTIONISTS: 

See  Insurgents. 

Right  of  intercourse 35,  45 

Rights  of  man 12  et  seq. 

Riots,  suppression  of 449 

See  also  Mob  Violence. 
Rousseau's  doctrine  concerning  war 246 

RULES: 

For  issuance  of  passports 508 

For  submission  of  claims 653  et  seq. 

s 

SEAMEN: 

American  seamen,  meaning 475 

Classes  protected  by  U.  S 475 

Declaration  of  intention 476 

Destitute 476,  478 

Extraterritorial  jurisdiction 471 

Foreign,  on  American  vessels 476  el  seq. 

How  naturalized 475 

On  foreign-built  vessels  flying  American  flag 477,  483 

On  public  vessels 361 

Protection 471 ,  475  el  seq. 

Security'  for  costs 82 

SECURITY: 

Diversion  ot 295 

Weakenuig  of 295 


980  INDEX 

PAGE 

Sedition 228 

Seizure  of  property,  unlawful 336 

Self-help 453 

Self-preservation,  a  right  of  states 45,  271,  353 

Ship's  papers 478 

Siege 256 

Slave-trade 737 

SOLDIERS: 

As  authorities 188,  193 

Under  command 194 

Unofficered 193,  260 

Sovereignty 8 

Sovereigns  as  authorities 183 

"Special  protection" 40,  179,  216,  222 

Speculative  claims 289,  300,  315,  728 

Speech  and  press,  freedom  of 76 

Spohation 261,  267 

Standards  of  civilized  justice vi,  179,  333,  334,  350 

STATE,  THE: 

Claims  against 177  et  seq. 

Corporate  functions 117 

Full  discretion  in  prosecuting  claim 354,  363 

Function  of  protection 30 

Governmental  functions 117 

Immunity  from  suit  (Anglo-American  system) 159 

Indemnity  for  war  losses 246,  247,  279 

Injured  in  the  person  of  its  citizen 351,  666 

International  responsibility 177  et  seq. 

Municipal  responsibiUty 116  e<  seq. 

Not  an  agent  or  trustee  for  citizen 357,  359 

Political  theory 10,  30 

Suability  of: 

See  Suability. 

Succession 202 

STATE,  DUTY  OF: 

Administrative  machinery 213 

Not  a  guarantor  of  safety  of  aliens 213 

To  afford  local  protection 106,  213,  220,  349 

To  prosecute  private  wrongdoers  and  wrongdoing  officers.  .186,  191,  194, 

199,  337,  339 
To  protect  citizen  abroad 39,  356 

STATE    LIABILITY  FOR: 

Acta  of  officers 170,  186 


INDEX 


981 


STATE    LIABILITY  FOR— Continued  paor 

Disavowal  of  act  insufficient 191 

Failure  to  afford  redress 189,  192,  199,  217,  337 

Failure  to  prevent  wrong 188,  192,  194,  199,  215 

Failure  to  provide  local  protection 215,  221 

Failure  to  punish  guilty  offender 191,  194,  199,  337,  339 

Inadequate  punishment 218,  339 

Pardon  to  guilty  offenders 218,  339 

Refusal  to  investigate  injury 192,  337 

Unlawfully  preventing  appeal 239 

STATE  AND  CITIZEN  ABROAD 

Evasion  of  national  duties  by  citizen 728 

Mihtary  service 21,  730 

Private  international  law 23,  345 

Protection  abroad 24,  26,  30,  345,  354,  713  et  seq. 

Reciprocal  rights  and  duties 21,  732 

Taxation 22 

STATUS  OF  INDIVIDUAL: 

Law  governing 24 

STOCKHOLDERS: 

Alien  enemy 112 

Effect  of  their  citizenship  on  protection 619  et  seq.,  625 

Suabihty  of  state 124,  160,  285  291 

In  claims  arising  out  of  unpaid  bonds 305 

See  also  Municipal  Responsibility. 


SUBDIVISIONS  OF  STATE,  POLITICAL: 

Contracts  with 200 

International  responsibility 199 

Municipal  liability 160 


SUBJECTION  TO  TERRITORIAL  LAW: 

See  Submission. 

Subjects  of  international  law 16  et  seq.,  26 

Submarine  mines 259 

Submission  to  local  law vi,  94,  104,  179,  333,  344,?349,  733,  793,  795 

Conditions  of  submission  in  criminal  cases 101,  333 

Successful  revolutionists 241 

Succession,  rights  of 630,  633 

Law  governing 630,  834 

Of  aliens 87 

Of  states 202 

Succession  taxes 88 


982  INDEX 

PAGE 

Successors  in  interest 627  et  seq. 

Assignees 636 

Assignees  in  bankruptcy 641 

Creditors 643 

Executors  and  administrators 629,  633 

Heirs 627 

Insurers 627  et  seq 

Mortgagees 645 

Personal  representatives 633,  634 

Receivers 642 

SUIT  AGAINST  STATE: 

See  Municipal  Responsibility. 

SUIT  AGAINST  FOREIGN  STATES: 

In  municipal  courts 175 

T 

Tariff  duties 182 

Excessive  collections 184 

Taxation 22,  95 

Double  taxation 22,  96 

TAXES: 

Collected  by  de  facto  authorities 208 

TERRITORIAL  JURISDICTION: 
See  Jurisdiction,  Territorial. 

Territorial  sovereignty 8,  24,  27 

Territoriality  of  law 3 

Titles  to  land 834 

Tort  claims 185,  282 

Maritime  torts 419 

Measure  of  damages 422 

TRADE  DOMICIL  IN  WAR: 

See  Belligerent  Domicil. 

Trade,  right  to 78 

Unlawful 748 

Trade-marks 90 

Trading  with  enemies 110,  253,  748 

Licenses 1 10,  753 

Prohibition  upon  neutral  vessels 752 

Transfer  of  flag 255,  483,  744 


INDEX  983 

TRANSFER  OP  FLAG— Continued  pagf. 

Colorable 484,  734,  74;{ 

Transient  aliens 91,  350,  691 

TREATIES: 

As  means  of  protection 438 

Limiting  diplomatic  interposition 840,  843,  852 

Limitation  of  liability  in  civil  war  injuries 244,  838 

Naturalization 548 

TREATY  OF  PEACE: 

Effect  on  dainjs 256,  362,  368 

Treaty  rights  of  aliens 18,  107,  201,  202,  226 

Practice  of  Department  of  State  in  addressing  Governors 403 

Within  jurisdiction  of  courts 108 

Treaty,  violations  of 337 

Trespasses  and  evictions 336 

TRIBUNALS  OF  ARBITRATION: 

Calvo  clause 800  et  seq. 

Citizenship  at  origin 662 

Citizenship  at  time  of  presentation 664 

Claims  for  military  service 772,  776 

Claims  for  unneutral  contracts 784 

Conclusiveness  of  certificate  of  naturalization 522 

Conditions  for  presentation  of  claim 658 

Corporation  claims 623 

Determination  of  jurisdiction 444 

Determination  of  questions  of  citizenship 486 

Effect  of  concealment  of  citizenship 721 

Effect  of  contractual  renunciation  of  protection 800  el  seq. 

Effect  of  diplomatic  negotiations  upon 370,  383 

Effect  of  domicil 561 

Effect  of  private  waiver  of  claim 372,  800 

Effect  of  prolonged  residence  abroad  on  citizenship 698 

Effect  on  jurisdiction  of  stockholders'  citizenship 625 

Heirs  as  claimants 628 

Jurisdiction  over  bond  claims 322 

Jurisdiction  over  contractual  claims 297 

Laches  and  prescription 829 

Marritil  women  and  widows tiOo 

Partnership  claims 614 

Powers 524 

Practice  in  matters  of  contractual  claims 299 

Privateering 757 

Proof  of  citizenship,  rules  concerning 490 

Questions  of  dual  natioaality 537 


984  INDEX 

TRIBUNALS  OF  ARBITRATION— Continued  .  page 

Rules  governing  right  of  representation 633 

Unlawful  expeditions 762 

Unlawful  trade  with  enemies 752 

Tucker  Act 164  e(  seq.,  395,  659 

U 

Unconscionable  awards 374,  384 

Unfriendly  acts 780 

Aid  and  comfort 786 

UNITED  STATES: 

Constitutional  questions  in  enforcing  rights  of  aliens 108,  226,  403 

Jurisdiction  of  courts 108 

Position  of  aliens 107 

United  States  and  Latin-American  public  debts 326 

Unjust  arrest  or  detention 98,  337 

Unjust  enrichment 184 

UNJUST  JUDGMENT: 

Distinguished  from  denial  of  justice 196,  340 

Effect  of 196,  331,  340 

How  far  internationally  binding 340 

Not  a  bar  to  international  claim  if  illegal 342 

Plea  of  res  adjiidicata 342 

Reached  by  proper  observance  of  legal  forms 332 

UNLAWFUL  EXPEDITIONS: 
See  Hostile  Expeditions. 

Unlawful  arrest  or  detention 98,  337 

Unneutral  character 263 

Unneutral  conduct 715,  752,  755  el  seq. 

Neutrality  statutes  of  U.  S 758 

Privateering 756 

Unfriendly  acts 780 

Unlawful  expeditions 758  et  seq. 

Unneutral  military  service 766  el  seq. 

Unneutral  service 112,  254,  271,  776 

Contracts  for 299,  774,  776 

Waiver  by  government 300,  776 

Unneutral  supplies  and  other  aid 783 

Aid  and  comfort 786 

Unsuccessful  revolution 231  ei  $«q. 

V 

Vattel's  theory  of  protection 351,  666 


INDEX  985 

VESSELS  (AMERICAN):  paob 

Abusive  display  of  flag 484,  743 

Acceptance  of  privateering  commiBsion 48.5 

American  ownership  title  to  protection 480 

Bill  of  sale 479 

Certificates  of  registration 479 

Days  of  grace  to  depart,  in  war 62,  114,  266 

Effect  of  belligerent  domicil  of  owner iSS 

Evidence  of  nationality 478 

Evidentiary  value  of  flag 115 

Flag 476,  478 

Flying  foreign  flag 482 

Foreign-built,  flying  American  flag 477,  480 

Fraudulent  registry 480 

In  distress 94 

In  foreign  employment 481,  695,  770,  813 

Jus  an^arice 255,  267 

Licenses  for  trading  with  enemy 110,  753 

Neutral  vessels  prohibited  to  engage  in  unlawful  trade 752 

Ownership 80,  479,  480 

Privateering 756 

Proof  of  claim,  arising  from  capture  of 655 

Protection  of  cargo 483 

Protection  of  persons  upon 476 

Registered  and  unregistered 479 

Seamen  on 475 

Seizure  of,  as  reprisal 453 

Ship's  papers 478 

Subject  to  seizure  in  war 270 

Transfer  of  flag 255,  483,  744 

Unlawful  detention 98,  187 

Unlawful  expeditions 758,  762 

Unlawful  trade 748 

Virginias  case 479,  765 

VESSELS,  PUBLIC: 

Torts  of 166,  188 

Torts  against 419 

Virginius  case 479,  765 

Visit  and  search 112,  272 

Resistance  to 739,  744 

Voluntary  services 300 

VOTING: 

As  evidence  of  citizenship 491 

Effect  on  citizenship 712 

Effect  on  protection 779 


986  INDEX 


w 


WAIVER  OF  CLAIM:  page 

By  laches 827 

Effect  of  private  waiver  on  international  tribunal 372,  800 

Private  waiver  does  not  affect  right  of  government 358,  372,  797 

Waiver  of  forfeiture  of  protection 746,  785 

WANTON  ACTS: 

By  soldiers 193,  233,  260 

Of  bombardment 258 

Of  destruction 261 

WAR: 

Acts  of  war 256,  257 

Alien  enemies 111»  251 

Angary 113,  253,  255,  267 

Appropriation  of  property 262 

Arrest  and  detention 259 

A  state  of  war 248 

At  sea 114,  270 

Battle 256 

Belligerent  acta 256 

Belligerent  domicil 110,  251,  750 

Belligerent  obligations  (maritime) 271  el  seq. 

Blockade 271,  274,  739 

Bombardment 256,  259 

Booty 260 

Cable-cutting 265 

Contraband 112,  271  et  seq.,  740 

Contracts HI 

Days  of  grace  for  enemy  vessels  in  port 62,  114,  266 

Effect  of  treaty  of  peace 256,  362,  368,  834 

Embargo 265 

Enemy  property 112,  255 

Enemy  vessels 266 

Enemy  character 1 10,  253 

Expatriation  during 687,  731 

Hague  Regulations 114,  251,  256,  263 

Incidental  results 259,  260 

Indemnities 280 

indicia 248 

Military  occupation 207,  239,  250,  263,  267 

Neutral  obligations  (maritime) ....  277 

Neutral  persons 112,  251 

Neutral  property  at  sea 270 

Neutral  property  on  land 114,  234,  251,  255,  563,  812 


INDEX  'J87 

WAR — Continued  paub 

Occupation  of  buildings 264 

On  land 255 

Partnerships Ill,  254 

Pillage 2G0 

Position  of  aliens 109,  250 

Prize  courts 272,  275 

Requisitions  and  contributions 207 

Rules  of  the  Institute 248,  259.  265,  270 

Siege 256 

State  indemnity 246,  247,  279 

Stockholders 112 

Submarine  mines 259 

Trading  between  enemies 110,  253,  748 

Transfer  of  flag 255,  483,  744 

Vessels  exempt  from  seizure 271 

Wanton  destruction  of  property 261 

War  measures,  legitimacy 261 

Withdrawal  from  enemy  territory 750,  812 

War  claims 246  et  seq. 

Land  war 248,  255 

WAR  LOSSES: 

Classes 247 

Principles 256 

War  measures,  legitimacy  of 261 

As  reprisal 455 

WAR  VESSELS: 

To  collect  claims 446 

Ward  claim 288,  301 

Weil  and  La  Abra  claims 375,  386,  726 

WIDOW: 

American-born,  of  alien 604 

Citizenship 598,  604 

Decisions  of  international  tribunals 605 

Effect  of  consular  registration 605,  668,  689 

Election  of  citizenship 598,  600,  604,  689 

Foreign  born,  of  American  citizen 598 

Passport 510 

Withdrawal  of  diplomatic  representative 445 

WOMEN  (MARRIED): 

American-born  wife  of  alien 601,  604 

Citizenship 592,  593  et  seq.,  685 

Decisions  of  international  tribunals 605 


988  INDEX 

WOMEN  (MARRIED)— Cora/inued  page 

Effect  of  husband's  expatriation 687 

Effect  of  marriage  upon  citizenship 593,  685 

Expatriation 601,  685 

Foreign-born  wife  of  American  citizen 594 

Foreign-born  widow  of  American  citizen 598 

In  connection  with  Immigration  Act 59G 

Japanese 67 1 

Passports 510 

Repatriation 598,  600,  601,  688 

See  also  Widow. 


908 


UNIVERSITY   OF  CALIFORNIA   LIBRARY 

Los  Angeles 
This  book  is  DLiE  on  the  last  date  stani|>e(l  below. 


OCT  28  H 


APR  1  8  M 


24139 


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